[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
[Rules and Regulations]
[Pages 30026-30579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10512]
[[Page 30025]]
Vol. 85
Tuesday,
No. 97
May 19, 2020
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. 85, No. 97 / Tuesday, May 19, 2020 / Rules
and Regulations
[[Page 30026]]
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DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2018-OCR-0064]
RIN 1870-AA14
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 Secretary of Education amends the regulations implementing
Title IX of the Education Amendments of 1972 (Title IX). The final
regulations specify how recipients of Federal financial assistance
covered by Title IX, including elementary and secondary schools as well
as postsecondary institutions, (hereinafter collectively referred to as
``recipients'' or ``schools''), must respond to allegations of sexual
harassment consistent with Title IX's prohibition against sex
discrimination. These regulations are intended to effectuate Title IX's
prohibition against sex discrimination by requiring recipients to
address sexual harassment as a form of sex discrimination in education
programs or activities. The final regulations obligate recipients to
respond promptly and supportively to persons alleged to be victimized
by sexual harassment, resolve allegations of sexual harassment promptly
and accurately under a predictable, fair grievance process that
provides due process protections to alleged victims and alleged
perpetrators of sexual harassment, and effectively implement remedies
for victims. The final regulations also clarify and modify Title IX
regulatory requirements regarding remedies the Department may impose on
recipients for Title IX violations, the intersection between Title IX,
Constitutional protections, and other laws, the designation by each
recipient of a Title IX Coordinator to address sex discrimination
including sexual harassment, the dissemination of a recipient's non-
discrimination policy and contact information for a Title IX
Coordinator, the adoption by recipients of grievance procedures and a
grievance process, how a recipient may claim a religious exemption, and
prohibition of retaliation for exercise of rights under Title IX.
DATES: These regulations are effective August 14, 2020.
FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of
Education, 400 Maryland Avenue SW, Room 4E308, Washington, DC 20202.
Telephone: (202) 453-6639. Email: [email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
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
Adoption and Adaption of the Supreme Court's Framework To Address
Sexual Harassment
Differences Between Standards in Department Guidance and These
Final Regulations
Definition of Sexual Harassment
Actual Knowledge
Deliberate Indifference
Role of Due Process in the Grievance Process
Due Process Principles
Summary of Sec. 106.45
Similarities and Differences Between the Sec. 106.45 Grievance
Process and Department Guidance
Public Comment
Analysis of Comments and Changes
Personal Stories
Notice and Comment Rulemaking Rather Than Guidance
General Support and Opposition
Commonly Cited Sources
Data--Overview
Prevalence Data--Elementary and Secondary Schools
Prevalence Data--Postsecondary Institutions
Prevalence Data--Women
Prevalence Data--Men
Prevalence Data--LGBTQ Persons
Prevalence Data--Persons of Color
Prevalence Data--Individuals With Disabilities
Prevalence Data--Immigrants
Impact Data
Cost Data
Reporting Data
Stereotypes/Punishment for ``Lying''
False Allegations
General Support and Opposition for Supreme Court Framework Adopted
in Sec. 106.44(a)
General Support and Opposition for the Grievance Process in Sec.
106.45
Section 106.30 Definitions
Actual Knowledge
Support for Actual Knowledge Requirement and General Safety
Concerns
Student Populations Facing Additional Barriers to Reporting
Chilling Reporting
Generally Burdening Complainants
Employees' Obligations
Elementary and Secondary Schools
Large Schools
Miscellaneous Comments and Questions
Complainant
Consent
Elementary and Secondary Schools
Formal Complaint
Support for Formal Complaint Definition
No Formal Complaint Required To Report Sexual Harassment
Burden on Complainants To File a Formal Complaint
Anonymous Reporting and Anonymous Filing of Formal Complaints
Officials Other Than the Title IX Coordinator Filing a Formal
Complaint
Complexity of a Document Labeled ``Formal Complaint''
Parents' and Guardians' Rights To File a Formal Complaint
Methods of Reporting and Methods of Filing a Formal Complaint
Miscellaneous Concerns About the Formal Complaint Definition
Postsecondary Institution
Respondent
Sexual Harassment
Overall Support and Opposition for the Sec. 106.30 Sexual
Harassment Definition
Prong (1) Quid pro quo
Prong (2) Davis standard
Davis Standard Generally
So Severe
And Pervasive
Objectively Offensive
Effectively Denies Equal Access
Prong (3) Sexual Assault, Dating Violence, Domestic Violence,
Stalking
Gender-Based Harassment
Supportive Measures
Overall Support and Opposition
No-Contact Orders
Other Language/Terminology Comments
Section 106.44 Recipient's Response to Sexual Harassment, Generally
Section 106.44(a) ``Actual Knowledge''
The Recipient's Self-Interest
Burdening the Complainant
Elementary and Secondary Schools
Confusion for Employees
Intersection Between Actual Knowledge and Deliberate
Indifference
Modeling Reporting on the Military System
Section 106.44(a) ``education program or activity''
General Support and Opposition for ``Education Program or
Activity'' as a Jurisdictional Condition
Online Sexual Harassment
Consistency With Title IX Statutory Text
Constitutional Equal Protection
Institutional Autonomy and Litigation Risk
Requests for Clarification
Section 106.44(a) ``Against a Person in the U.S.''
Impact on Study Abroad Participants
Consistency With Federal Law and Departmental Practice
Constitutional Equal Protection
Impact on International or Foreign Exchange Students in the U.S.
Section 106.44(a) Deliberate Indifference Standard
Recipient's Response in Specific Circumstances
Section 106.44(b) Proposed ``Safe Harbors,'' Generally
Section 106.44(b)(1) Mandate To Investigate Formal Complaints
and Safe Harbor
Proposed Sec. 106.44(b)(2) Reports by Multiple Complainants of
Conduct by
[[Page 30027]]
Same Respondent [Removed in Final Regulations]
Proposed Sec. 106.44(b)(3) Supportive Measures Safe Harbor in
Absence of a Formal Complaint [removed in final regulations]
Section 106.44(b)(2) OCR Will Not Re-Weigh the Evidence
Additional Rules Governing Recipients' Responses to Sexual
Harassment
Section 106.44(c) Emergency Removal
Overall Support and Opposition to Emergency Removals
Intersection With the IDEA, Section 504, and ADA
Post-Removal Challenges
No Stated Time Limitation for the Emergency Removal
``Removal''
``Individualized Safety and Risk Analysis''
``Provides the Respondent With Notice and an Opportunity To
Challenge the Decision Immediately Following the Removal''
How OCR Will Enforce the Provision
Section 106.44(d) Administrative Leave
Section 106.45 Recipient's Response to Formal Complaints
General Requirements for Sec. 106.45 Grievance Process
Section 106.45(a) Treatment of Complainants or Respondents Can
Violate Title IX
Section 106.45(b)(1)(i) Equitable Treatment of Complainants and
Respondents
Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant
Evidence
Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of
Title IX Personnel; Directed Question 4 (Training)
Section 106.45(b)(1)(iv) Presumption of Non-Responsibility
Purpose of the Presumption
Students of Color, LGBTQ Students, and Individuals With
Disabilities
The Complainant's Right to Due Process Protections
False Allegations
Inaccurate Findings of Non-Responsibility
Recipients Should Apply Dual Presumptions or No Presumption
The Adversarial Nature of the Grievance Process
Supportive Measures
Miscellaneous Concerns
Section 106.45(b)(1)(v) Reasonably Prompt Time Frames
Support
Opposition--Lack of Specified Time Limit
Effects on Recipients
Concerns Regarding Concurrent Law Enforcement Activity
Alternative Proposals
Clarification Requests
Section 106.45(b)(1)(vi) Describe Range or List of Possible
Sanctions and Remedies
Section 106.45(b)(1)(vii) Describe Standard of Evidence
Section 106.45(b)(1)(viii) Procedures and Bases for Appeal
Section 106.45(b)(1)(ix) Describe Range of Supportive Measures
Section 106.45(b)(1)(x) Privileged Information
Written Notice of Allegations
Section 106.45(b)(2) Written Notice of Allegations
Retaliation
Warning Against False Statements
Investigative Process
Administrative Burden on Schools
Elementary and Secondary Schools
Confidentiality and Anonymity for Complainants
General Modification Suggestions
General Clarification Requests
Dismissal and Consolidation of Formal Complaints
Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints
Section 106.45(b)(3)(ii)-(iii) Discretionary Dismissals/Notice
of Dismissal
Section 106.45(b)(4) Consolidation of Formal Complaints
Investigation
Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence
Rest on the Recipient
Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses
and Other Inculpatory/Exculpatory Evidence
Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability
of Either Party To Discuss Allegations or Gather and Present
Relevant Evidence
Section 106.45(b)(5)(iv) Advisors of Choice
Supporting Presence and Participation of Advisors
Fairness Considerations
Conflicts of Interest, Confidentiality, and Union Issues
Modification Requests
Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings,
and Interviews
Section 106.45(b)(5)(vi) Inspection and Review of Evidence
Directly Related to the Allegations, and Directed Question 7
Section 106.45(b)(5)(vii) An Investigative Report that Fairly
Summarizes Relevant Evidence
Hearings
Cross-Examination Generally
Support for Cross-Examination
Retraumatizing Complainants
Reducing Truth-Seeking
Demeanor Evaluation Is Unreliable
Trauma Responses
Reliance on Rape Myths
Cross-Examination as a Due Process Requirement
Discourages Participation
Financial Inequities
Changes the Nature of the Grievance Process
Section 106.45(b)(6)(ii) Should Apply to Postsecondary
Institutions
False Accusations Occur Infrequently
Excluding Cross-Examination Questions
Section 106.45(b)(6)(i) Postsecondary Institution Recipients
Must Provide Live Hearing With Cross-Examination
Self-Representation Versus Cross-Examination Conducted by
Advisors
Explain Decision to Exclude Questions
No Reliance on Statements of a Party Who Does Not Submit to
Cross-Examination
Rape Shield Protections
Separate Rooms for Cross-Examination Facilitated by Technology;
Directed Question 9
Discretion To Hold Live Hearings and Control Conduct of Hearings
Section 106.45(b)(6)(ii) Elementary and Secondary School
Recipients May Require Hearing and Must Have Opportunity To Submit
Written Questions
Determinations Regarding Responsibility
Section 106.45(b)(7)(i) Single Investigator Model Prohibited
Benefits of Ending the Single Investigator Model
Consistency with Case Law
Alternative Approaches to Ending Single Investigator Model
Chilling Reporting and Other Harmful Effects
Respecting the Roles of Title IX Coordinators and Investigators
Preserving Recipient Autonomy
Consistency With Federal Law and Employment Practices
Limiting the Prohibition of the Single Investigator Model
Requests for Clarification
Section 106.45(b)(7)(i) Standard of Evidence and Directed
Question 6
Mandating a Higher Standard of Evidence
Supporting Sec. 106.45(b)(7)(i)
One-Sided Condition on Choice of Evidentiary Standard
Same Evidentiary Standard in Student and Faculty Cases
Requiring the Preponderance of the Evidence Standard
Improving Accuracy of Outcomes
Safety Concerns
Consistency of Standards of Evidence Across Recipients
Standards of Evidence Below the Preponderance of the Evidence
Questioning the Department's Legal Authority
Alternative Approaches and Clarification Requests
Section 106.45(b)(7)(ii) Written Determination Regarding
Responsibility Must Include Certain Details
Section 106.45(b)(7)(iii) Timing of When the Decision Becomes
Final
[Sec. 106.45(b)(7)(iv) Title IX Coordinator Responsible for
Effective Implementation of Remedies: Addressed Under Sec.
106.45(b)(7)(iii)]
Transcript Notations
Appeals
Section 106.45(b)(8) Appeals
Informal Resolution
Section 106.45(b)(9) Informal Resolution
Supporting and Expanding Informal Resolution
Terminology Clarifications
Written Notice Implications
Voluntary Consent
Safety Concerns Based on Confidentiality
Consistency With Other Law and Practice
Training Requirements
Non-Binding Informal Resolution
Survivor-Oriented Protections
Restorative Justice
Avoiding Formal Process
Electronic Disclosures
Expulsion Through Informal Resolution
Clarification Requests
Recordkeeping
Section 106.45(b)(10) Recordkeeping and Directed Question 8
Clarifying Amendments to Existing Regulations
[[Page 30028]]
Section 106.3(a) Remedial Action
Section 106.6(d)(1) First Amendment
Section 106.6(d)(2) Due Process
Section 106.6(d)(3) Other Constitutional Rights
Section 106.6(e) FERPA
Background
Comments, Discussion, and Changes
Section 106.6(f) Title VII and Directed Question 3 (Application
to Employees)
Section 106.6(g) Exercise of Rights by Parents/Guardians
Section 106.6(h) Preemptive Effect
Section 106.8(a) Designation of Coordinator
Section 106.8(b) Dissemination of Policy
Removal of 34 CFR 106.9(c)
List of Publications
Professional Organizations
Parents of Elementary and Secondary School Students
Subjectivity in Publications' Implication of Discrimination
Judicial Requirements for Sex Discrimination
Implicit Forms of Sex Discrimination
Analogous Provisions in Other Laws
Suggested Modifications
Section 106.8(c) Adoption and Publication of Grievance
Procedures
Section 106.8(d) Application Outside the United States
Section 106.12 Educational Institutions Controlled by a
Religious Organization
Directed Questions
Directed Question 1: Application to Elementary and Secondary
Schools
Directed Question 2: Application Based on Type of Recipient or
Age of Parties
Directed Question 5: Individuals With Disabilities
Miscellaneous
Executive Orders and Other Requirements
Length of Public Comment Period/Requests for Extension
Conflicts With First Amendment, Constitutional Confirmation,
International Law
Clery Act
Background
Comments, Discussion, and Changes
Different Standards for Other Harassment
Spending Clause
Litigation Risk
Effective Date
Retaliation
Section 106.71 Retaliation Prohibited
Severability
Regulatory Impact Analysis (RIA)
Costs of Sexual Harassment and Assault
Overall Net Effects/Characterization of Savings
Motivation for Rulemaking
The Department's Model and Baseline Assumptions
Data Sources
Other
Section 106.44(a) Supportive Measures
Section 106.45(b)(1)(iii) Title IX Coordinators, Investigators,
and Decision-Makers Must Be Properly Trained
Section 106.45(b)(5) Investigation of Formal Complaints
Section 106.45(b)(6) Hearings
Section 106.45(b)(7) Determinations Regarding Responsibility
Section 106.45(b)(8) Appeals
Section 106.45(b)(9) Informal Resolution
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Need for Regulatory Action
Discussion of Costs, Benefits, and Transfers
Regulatory Alternatives Considered
Accounting Statement
Regulatory Flexibility Act
Paperwork Reduction Act of 1995
Accessible Format
Electronic Access to This Document
Effective Date
On March 13, 2020, the President of the United States declared that
a national emergency concerning the novel coronavirus disease (COVID-
19) outbreak began on March 1, 2020, as stated in ``Declaring a
National Emergency Concerning the Novel Coronavirus Disease (COVID-19)
Outbreak,'' Proclamation 9994 of March 13, 2020, Federal Register Vol.
85, No. 53 at 15337-38. The Department appreciates that exigent
circumstances exist as a result of the COVID-19 national emergency, and
that these exigent circumstances require great attention and care on
the part of States, local governments, and recipients of Federal
financial assistance. The Department recognizes the practical necessity
of allowing recipients of Federal financial assistance time to plan for
implementing these final regulations, including to the extent
necessary, time to amend their policies and procedures necessary to
comply. Taking into account this national emergency, as well as
consideration of public comments about an effective date as discussed
in the ``Effective Date'' subsection of the ``Miscellaneous'' section
of this preamble, the Department has determined that these final
regulations are effective August 14, 2020.
Executive Summary
Purpose of This Regulatory Action
Enacted in 1972, Title IX prohibits discrimination on the basis of
sex in education programs and activities that receive Federal financial
assistance.\1\ In its 1979 opinion Cannon v. University of Chicago,\2\
the Supreme Court stated that the objectives of Title IX are two-fold:
first, to ``avoid the use of Federal resources to support
discriminatory practices'' and second, to ``provide individual citizens
effective protection against those practices.'' \3\ The U.S. Department
of Education (the ``Department'' or ``we'') may issue rules
effectuating the dual purposes of Title IX.\4\ We refer herein to Title
IX's prohibition on sex discrimination and purposes as described by the
Supreme Court as Title IX's non-discrimination mandate.
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\1\ 20 U.S.C. 1681 (``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 . . .
.'').
\2\ 441 U.S. 677 (1979).
\3\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
\4\ 20 U.S.C. 1682 (``Each Federal department and agency which
is empowered to extend Federal financial assistance to any education
program or activity . . . is authorized and directed to effectuate
the provisions of section 1681 of this title with respect to such
program or activity by issuing rules, regulations, or orders of
general applicability which shall be consistent with achievement of
the objectives of the statute authorizing the financial assistance
in connection with which the action is taken.'').
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The Department's predecessor, the Department of Health, Education,
and Welfare (HEW), first promulgated regulations under Title IX,
effective in 1975.\5\ Those regulations reinforced Title IX's non-
discrimination mandate, addressing prohibition of sex discrimination in
hiring, admissions, athletics, and other aspects of recipients'
education programs or activities. The 1975 regulations also required
recipients to designate an employee to coordinate the recipient's
efforts to comply with Title IX and to adopt and publish grievance
procedures providing for prompt and equitable resolution of complaints
that a recipient is discriminating based on sex.
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\5\ 40 FR 24128 (June 4, 1975) (codified at 45 CFR part 86). In
1980, Congress created the United States Department of Education.
Public Law 96-88, sec. 201, 93 Stat. 669, 671 (1979); Exec. Order
No. 12212, 45 FR 29557 (May 2, 1980). By operation of law, all of
HEW's determinations, rules, and regulations continued in effect and
all functions of HEW's Office for Civil Rights, with respect to
educational programs, were transferred to the Secretary of
Education. 20 U.S.C. 3441(a)(3). The regulations implementing Title
IX were recodified without substantive change in 34 CFR part 106. 45
FR 30802, 30955-65 (May 9, 1980).
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When HEW issued its regulations in 1975, the Federal courts had not
yet addressed recipients' Title IX obligations with respect to sexual
harassment as a form of sex discrimination. In the decades since HEW
issued the 1975 regulations, the Department has not promulgated any
Title IX regulations to address sexual harassment as a form of sex
discrimination. Beginning in 1997, the Department addressed this
subject through a series of guidance documents, most notably the 2001
Guidance \6\
[[Page 30029]]
(which revised similar guidance issued in 1997 \7\), the withdrawn 2011
Dear Colleague Letter,\8\ the withdrawn 2014 Q&A,\9\ and the 2017
Q&A.\10\ The Department understands that agency guidance is not
intended to represent legal obligations; however, we also acknowledge
that in part because the Title IX statute and the Department's
implementing regulations have (until these final regulations) not
addressed sexual harassment, recipients and the Department have relied
on the Department's guidance to set expectations about how recipients
should respond to sexual harassment and how the Department investigates
recipients for possible Title IX violations with respect to responding
to sexual harassment.\11\ These final regulations impose, for the first
time, legally binding rules on recipients with respect to responding to
sexual harassment, and the nature of the legal obligations imposed
under these final regulations is similar in some ways, and different in
some ways, to the way the Department approached this subject in its
guidance documents. Those similarities and differences are explained
throughout this preamble, including in the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment'' and ``Role
of Due Process in the Grievance Process'' sections of this preamble.
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\6\ U.S. Dep't. of Education, Office for Civil Rights, Revised
Guidance on Sexual Harassment: Harassment of Students by School
Employees, Other Students, or Third Parties (Jan. 19, 2001)
(hereinafter, ``2001 Guidance''), https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
\7\ U.S. Dep't. of Education, Office for Civil Rights, Sexual
Harassment Guidance: Harassment of Students By School Employees,
Other Students, or Third Parties, 62 FR 12034 (Mar. 13, 1997)
(hereinafter, ``1997 Guidance''), https://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html#skipnav2.
\8\ U.S. Dep't. of Education, Office for Civil Rights, Dear
Colleague Letter: Sexual Violence (April 4, 2011) (hereinafter
``2011 Dear Colleague Letter''), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf, withdrawn by, U.S. Dep't. of
Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22,
2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
\9\ U.S. Dep't. of Education, Office for Civil Rights, Questions
and Answers on Title IX and Sexual Violence (April 29, 2014)
(hereinafter ``2014 Q&A''), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, withdrawn by, U.S. Dep't. of
Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22,
2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
\10\ U.S. Dep't. of Education, Office for Civil Rights, Q&A on
Campus Sexual Misconduct (Sept. 22, 2017) (hereinafter, ``2017
Q&A''), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.
\11\ For example, OCR found numerous institutions in violation
of Title IX for failing to adopt the preponderance of the evidence
standard in its investigations of sexual harassment, even though the
notion that the preponderance of the evidence standard is the only
standard that might be applied under Title IX is set forth in the
2011 Dear Colleague Letter and not in the Title IX statute, current
regulations, or other guidance. E.g., U.S. Dep't. of Education,
Office for Civil Rights, Letter of Findings to Harvard Law School 7
(Dec. 10, 2014) (``Harvard Law Letter''), https://www2.ed.gov/documents/press-releases/harvard-law-letter.pdf (``[I]n order for a
recipient's grievance procedures to be consistent with the Title IX
evidentiary standard, the recipient must use a preponderance of the
evidence standard for investigating allegations of sexual
harassment, including sexual assault/violence.'') OCR in its letter
of findings against Harvard Law School noted that Harvard's
procedures provide that ``formal disciplinary sanctions shall be
imposed only upon clear and convincing evidence.'' Harvard Law
Letter at 10. OCR found the following: ``This higher standard of
proof was inconsistent with the preponderance of the evidence
standard required by Title IX for investigating allegations of
sexual harassment or violence.'' Id.; see also U.S. Dep't. of
Education, Office for Civil Rights, Letter of Findings to S.
Methodist Univ. 4 (Dec. 11, 2014), https://www2.ed.gov/documents/press-releases/southern-methodist-university-letter.pdf; U.S. Dep't.
of Education, Office for Civil Rights, Letter of Findings to
Princeton Univ. 6, 11, 18 (Nov. 5, 2014), https://www2.ed.gov/documents/press-releases/princeton-letter.pdf; U.S. Dep't. of
Education, Office for Civil Rights, Letter of Findings to Tufts
Univ. 5 (Apr. 28, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01102089-a.pdf; U.S. Dep't. of Education,
Office for Civil Rights, Letter of Findings to Yale Univ. 4-5 (June
15, 2012), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/01112027-a.pdf. Many recipients changed their Title
IX policies and procedures to conform to the 2001 Guidance, and then
to the 2011 Dear Colleague Letter, in part based on OCR enforcement
actions that found recipients in violation for failing to comport
with interpretations of Title IX found only in guidance. E.g., Blair
A. Baker, When Campus Sexual Misconduct Policies Violate Due Process
Rights, 26 Cornell J. of Law & Pub. Pol'y 533, 542 (2016) (The 2011
Dear Colleague Letter has ``forced universities to change their
former policies drastically, with regards to their specific
procedures as well as the standard of proof, out of fear that the
Department of Education will pursue their school for a violation of
Title IX. In sum, the Dear Colleague Letter applied pressure on
colleges to maintain a victim-friendly environment, which is
admirable and necessary, but in turn has created a situation that
can be insensitive to the accused and `tilted in favor of the
alleged victim.' These situations do not have to be mutually
exclusive; and there must be a solution in which victim-friendly is
not synonymous with procedurally adverse to respondents.'')
(internal citations omitted); Lauren P. Schroeder, Cracks in the
Ivory Tower: How the Campus Sexual Violence Elimination Act Can
Protect Students from Sexual Assault, 45 Loy. Univ. Chi. L. J. 1195,
1202 (2014) (``[Because] Title IX is such a short statute with
little direction, schools look to specific guidance materials
provided by the Department of Education to determine the specific
requirements of Title IX.'').
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Prior to these final regulations, the Department's last policy
statement on Title IX sexual harassment was its withdrawal of the 2011
Dear Colleague Letter \12\ and concomitant issuance of the 2017 Q&A.
The 2017 Q&A along with the 2001 Guidance represent the ``status quo''
or ``baseline'' against which these final regulations make further
changes to the Department's enforcement of Title IX obligations.\13\
However, the withdrawal of the 2011 Dear Colleague Letter and issuance
of the 2017 Q&A did not require or result in wholesale changes to the
set of expectations guiding recipients' responses to sexual harassment
or to many recipients' Title IX policies and procedures. The Department
understands from public comments and media reports that many (if not
most) recipients chose not to change their Title IX policies and
procedures following the withdrawal of the 2011 Dear Colleague Letter
and issuance of the 2017 Q&A.\14\ This lack of change by recipients is
a reasonable response to the following facts: Guidance is not legally
enforceable; \15\ the 2017 Q&A expressly stated to recipients that the
2017 Q&A was issued as an interim, non-binding interpretation of Title
IX sexual harassment responsibilities while the Department conducted
rulemaking to arrive at legally binding regulations addressing this
subject; \16\ and both the 2017 Q&A and the withdrawn 2011 Dear
Colleague Letter relied heavily on the 2001 Guidance.\17\ The 2017 Q&A
along with the 2001 Guidance, and not the withdrawn 2011 Dear Colleague
Letter, remain the baseline against which these final regulations make
further changes to enforcement of Title IX obligations.
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\12\ The 2014 Q&A (withdrawn at the same time as the 2011 Dear
Colleague Letter was withdrawn) expounded on the same approach taken
by the Department in the withdrawn 2011 Dear Colleague Letter;
throughout this preamble, references to and discussion of the 2011
Dear Colleague Letter may be understood to assume that the same or
similar approach was taken in the 2014 Q&A unless otherwise noted.
\13\ 2017 Q&A at 1 (``[T]hese questions and answers--along with
the [2001 Guidance] previously issued by the Office for Civil
Rights--provide information about how OCR will assess a school's
compliance with Title IX'' in ``the interim'' while the Department
``engage[s] in rulemaking on the topic of schools' Title IX
responsibilities concerning complaints of sexual misconduct,
including peer-on-peer sexual harassment and sexual violence.'').
\14\ E.g., Alice B. Lloyd, Colleges Stick With Obama-Era Title
IX Guidance, Washington Examiner (Aug. 2, 2018) (describing the 2017
Q&A and withdrawal of the 2011 Dear Colleague Letter as giving
recipients ``the option to adjust their procedures'' for example
with respect to which standard of evidence to use in sexual
harassment cases, and designating a longer investigation time frame
than the 60 calendar day time frame specified in the 2011 Dear
Colleague Letter, and describing reasons why most recipients have
chosen not to change Title IX policies and procedures).
\15\ Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 96-98 (2015).
\16\ 2017 Q&A at 1.
\17\ Compare 2017 Q&A at 1-4, 6-7 with 2011 Dear Colleague
Letter at 2, 3-9, 11, 13.
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These final regulations largely address the same topics addressed
in the Department's current and past guidance, including withdrawn
guidance. Throughout this preamble we explain points of difference, and
similarity, between these final regulations, and the Department's
guidance. As such discussion makes clear, some of the Title IX policies
and procedures that
[[Page 30030]]
recipients have in place due to following the 2001 Guidance and the
withdrawn 2011 Dear Colleague Letter remain viable policies and
procedures for recipients to adopt while complying with these final
regulations. Because these final regulations represent the Department's
interpretation of a recipient's legally binding obligations, rather
than best practices, recommendations, or guidance, these final
regulations focus on precise legal compliance requirements governing
recipients. In many regards, as discussed throughout this preamble,
these final regulations leave recipients the flexibility to choose to
follow best practices and recommendations contained in the Department's
guidance or, similarly, best practices and recommendations made by non-
Department sources, such as Title IX consultancy firms, legal and
social science scholars, victim advocacy organizations, civil
libertarians and due process advocates, and other experts.
Based on extensive review of the critical issues addressed in this
rulemaking, the Department has determined that current regulations do
not provide clear direction for how recipients must respond to
allegations of sexual harassment because current regulations do not
reference sexual harassment at all. Similarly, the Department has
determined that Department guidance is insufficient to provide clear
direction on this subject because it is not legally enforceable,\18\
has created confusion and uncertainty among recipients,\19\ and has not
adequately advised recipients as to how to uphold Title IX's non-
discrimination mandate while at the same time meeting requirements of
constitutional due process and fundamental fairness.\20\ Therefore, the
Department issues these final regulations addressing sexual harassment,
to better align the Department's Title IX regulations with the text and
purpose of Title IX, the U.S. Constitution, Supreme Court precedent and
other case law, and to address the practical challenges facing
students, employees, and recipients with respect to sexual harassment
allegations in education programs and activities.
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\18\ For further discussion, see the ``Notice and Comment
Rulemaking Rather Than Guidance'' section of this preamble.
\19\ Janet Napolitano, ``Only Yes Means Yes'': An Essay on
University Policies Regarding Sexual Violence and Sexual Assault, 33
Yale L. & Pol'y Rev. 387, 393-97 (2015) (The Honorable Janet
Napolitano, the President of the University of California, who is a
former Governor and Attorney General of Arizona and a former United
States Secretary of Homeland Security, writing that OCR's guidance
documents ``left [campuses] with significant uncertainty and
confusion about how to appropriately comply after they were
implemented'' and specifically noted that the ``2011 Dear Colleague
Letter generated significant compliance questions for campuses.'');
see also Task Force on Fed. Regulation of Higher Education,
Recalibrating Regulation of Colleges and Universities at 12 (2015)
(the Task Force on Federal Regulation of Higher Education, appointed
by a bipartisan group of U.S. Senators, noting: ``[A] guidance
document meant to clarify uncertainty only led to more confusion. A
2011 `Dear Colleague' letter on Title IX responsibilities regarding
sexual harassment contained complex mandates and raised a number of
questions for institutions. As a result, the Department was
compelled to issue further guidance clarifying its letter. This took
the form of a 53-page `Questions and Answers' document [the
withdrawn 2014 Q&A] that took three years to complete. Still, that
guidance has raised further questions. Complexity begets more
complexity.'').
\20\ See the ``Role of Due Process in the Grievance Process''
section of this preamble.
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The final regulations define and apply the following terms, as
discussed in the ``Section 106.30 Definitions'' section of this
preamble: ``actual knowledge,'' ``complainant,'' ``elementary and
secondary schools,'' ``formal complaint,'' ``postsecondary
institution,'' ``respondent,'' ``sexual harassment,'' and ``supportive
measures''; each term has a specific meaning under these final
regulations. For clarity of understanding when reading this preamble,
``complainant'' means any individual who is alleged to be the victim of
sexual harassment, and ``respondent'' means any individual who is
reported to be the perpetrator of sexual harassment. A person may be a
complainant, or a respondent, even where no formal complaint has been
filed and no grievance process is pending. A ``formal complaint'' is a
document that initiates a recipient's grievance process, but a formal
complaint is not required in order for a recipient to have actual
knowledge of sexual harassment, or allegations of sexual harassment,
that activates the recipient's legal obligation to respond promptly,
including by offering supportive measures to a complainant. References
in this preamble to a complainant, respondent, or other individual with
respect to exercise of rights under Title IX should be understood to
include situations in which a parent or guardian has the legal right to
act on behalf of the individual.\21\
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\21\ For further discussion see the ``Section 106.6(g) Exercise
of Rights by Parents/Guardians'' subsection of the ``Clarifying
Amendments to Existing Regulations'' section of this preamble.
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Alleged victims of sexual harassment often have options to pursue
legal action through civil litigation or by pressing criminal charges.
Title IX does not replace civil or criminal justice systems. However,
the way in which a school, college, or university responds to
allegations of sexual harassment in an education program or activity
has serious consequences for the equal educational access of
complainants and respondents. These final regulations require
recipients to offer supportive measures to every complainant,
irrespective of whether the complainant files a formal complaint.
Recipients may not treat a respondent as responsible for sexual
harassment without providing due process protections. When a recipient
determines a respondent to be responsible for sexual harassment after
following a fair grievance process that gives clear procedural rights
to both parties, the recipient must provide remedies to the
complainant.
Summary of the Major Provisions of This Regulatory Action
These final regulations are premised on setting forth clear legal
obligations that require recipients to: Promptly respond to individuals
who are alleged to be victims of sexual harassment by offering
supportive measures; follow a fair grievance process to resolve sexual
harassment allegations when a complainant requests an investigation or
a Title IX Coordinator decides on the recipient's behalf that an
investigation is necessary; and provide remedies to victims of sexual
harassment.
Regarding sexual harassment, the final regulations:
[ssquf] Define the conduct constituting sexual harassment for Title
IX purposes;
[ssquf] Specify the conditions that activate a recipient's
obligation to respond to allegations of sexual harassment and impose a
general standard for the sufficiency of a recipient's response, and
specify requirements that such a response much include, such as
offering supportive measures in response to a report or formal
complaint of sexual harassment;
[ssquf] Specify conditions that require a recipient to initiate a
grievance process to investigate and adjudicate allegations of sexual
harassment; and
[ssquf] Establish procedural due process protections that must be
incorporated into a recipient's grievance process to ensure a fair and
reliable factual determination when a recipient investigates and
adjudicates a formal complaint of sexual harassment.
Additionally, the final regulations: Affirm that the Department's
Office for Civil Rights (``OCR'') may require recipients to take
remedial action for discriminating on the basis of sex or otherwise
violating the Department's regulations implementing Title IX,
consistent with 20 U.S.C. 1682; clarify that in responding to any claim
of sex discrimination under Title IX, recipients are not required to
deprive an individual of rights guaranteed under
[[Page 30031]]
the U.S. Constitution; acknowledge the intersection of Title IX, Title
VII, and FERPA, as well as the legal rights of parents or guardians to
act on behalf of individuals with respect to Title IX rights; update
the requirements for recipients to designate a Title IX Coordinator,
disseminate the recipient's non-discrimination policy and the Title IX
Coordinator's contact information, and notify students, employees, and
others of the recipient's grievance procedures and grievance process
for handling reports and complaints of sex discrimination, including
sexual harassment; eliminate the requirement that religious
institutions submit a written statement to the Assistant Secretary for
Civil Rights to qualify for the Title IX religious exemption; and
expressly prohibit retaliation against individuals for exercising
rights under Title IX.
Timing, Comments, and Changes
On November 29, 2018, the Secretary published a notice of proposed
rulemaking (NPRM) for these parts in the Federal Register.\22\ The
final regulations contain changes from the NPRM (interchangeably
referred to in this preamble as the ``NPRM,'' the ``proposed rules,''
or the ``proposed regulations''), and these changes are fully explained
in the ``Analysis of Comments and Changes'' and other sections of this
preamble.
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\22\ 83 FR 61462 (Nov. 29, 2018) (to be codified at 34 CFR pt.
106).
---------------------------------------------------------------------------
Throughout this preamble, the Department uses the terms
``institutions of higher education'' (or ``IHEs'') interchangeably with
``postsecondary institutions'' (or ``PSEs''). The Department uses the
phrase ``elementary and secondary schools'' (or ``ESEs'')
interchangeably with ``local educational agencies'' (or ``LEAs'' or
``K-12'').
Throughout this preamble, the Department refers to Title IX of the
Education Amendments of 1972, as amended, as ``Title IX,'' \23\ to the
Individuals with Disabilities Education Act as the ``IDEA,'' \24\ to
Section 504 of the Rehabilitation Act of 1973 as ``Section 504,'' \25\
to the Americans with Disabilities Act as the ``ADA,'' \26\ to Title VI
of the 1964 Civil Rights Act as ``Title VI,'' \27\ to Title VII of the
1964 Civil Rights Act as ``Title VII,'' \28\ to section 444 of the
General Education Provisions Act (GEPA), which is commonly referred to
as the Family Educational Rights and Privacy Act of 1974, as ``FERPA,''
\29\ to the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act as the ``Clery Act,'' \30\ and to the
Violence Against Women Reauthorization Act of 2013 as ``VAWA.'' \31\
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\23\ 20 U.S.C. 1681 et seq.
\24\ 20 U.S.C. 1400 et seq.
\25\ 29 U.S.C. 701 et seq.
\26\ 42 U.S.C. 12101 et seq.
\27\ 42 U.S.C. 2000d et seq.
\28\ 42 U.S.C. 2000e et seq.
\29\ 20 U.S.C. 1232g.
\30\ 20 U.S.C. 1092(f).
\31\ 34 U.S.C. 12291 et seq. (formerly codified at 42 U.S.C.
13925).
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The Department uses the phrase ``Title IX sexual harassment'' to
refer to the conduct defined in Sec. 106.30 to be sexual harassment as
well as the conditions described in Sec. 106.44(a) that require a
recipient to respond to sexual harassment under Title IX and these
final regulations.\32\ When the Department uses the term ``victim'' (or
``survivor'') or ``perpetrator'' to discuss these final regulations,
the Department assumes that a reliable process, namely the grievance
process described in Sec. 106.45, has resulted in a determination of
responsibility, meaning the recipient has found a respondent
responsible for perpetrating sexual harassment against a
complainant.\33\
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\32\ Section 106.44(a) requires a recipient with actual
knowledge of sexual harassment in an education program or activity
of the recipient against a person in the United States to respond
promptly in a manner that is not deliberately indifferent, meaning
not clearly unreasonable in light of the known circumstances.
\33\ As noted in the ``Executive Summary'' section of this
preamble, ``respondent,'' ``sexual harassment,'' and ``complainant''
are defined terms in Sec. 106.30.
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Throughout the preamble, the Department references and summarizes
statistics, data, research, and studies that commenters submitted. The
Department's reference to or summarization of these items, however,
does not speak to their level of accuracy. Whether specifically cited
or not, we considered all relevant information submitted to us in our
analysis and promulgation of these final regulations.
The Department references statistics, data, research, and studies
throughout this preamble. Such reference to or summarization of these
items does not indicate that the Department independently has
determined that the entirety of each item is accurate.
Many commenters referenced the impact of sexual harassment or the
proposed rules on individuals who belong to, or identify with, certain
demographic groups, and used a variety of acronyms and phrases to
describe such individuals; for example, various commenters referred to
``LGBT'' or ``LGBTQ+'' and ``persons of color'' or ``racial
minorities.'' For consistency, throughout this preamble we use the
acronym ``LGBTQ'' while recognizing that other terminology may be used
or preferred by certain groups or individuals, and our use of ``LGBTQ''
should be understood to include lesbian, gay, bisexual, transgender,
queer, questioning, asexual, intersex, nonbinary, and other sexual
orientation or gender identity communities. We use the phrase ``persons
of color'' to refer to individuals whose race or ethnicity is not white
or Caucasian. We emphasize that every person, regardless of demographic
or personal characteristics or identity, is entitled to the same
protections against sexual harassment under these final regulations,
and that every individual should be treated with equal dignity and
respect.
Finally, several provisions in the NPRM have been renumbered in the
final regulations.\34\ In response to commenters who asked for
clarification as to whether the definitions in Sec. 106.30 apply to a
term in a specific regulatory provision, some of the regulatory
provisions specifically refer to a term ``as defined in Sec. 106.30''
to provide additional clarity.\35\ Notwithstanding these points of
additional clarification in certain regulatory provisions, the
definitions in Sec. 106.30 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.
[[Page 30032]]
Citations to ``34 CFR 106.__'' in the body of the preamble and the
footnotes are citations to the Department's current regulations and not
the final regulations.
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\34\ Provisions proposed in the NPRM, as renumbered in these
final regulations, are:
Proposed Sec. 106.44(b)(2) eliminated in the final regulations.
Proposed Sec. 106.44(b)(3) eliminated in the final regulations.
Proposed Sec. 106.44(b)(4) eliminated in the final regulations.
Proposed Sec. 106.44(b)(5) in the final regulations as Sec.
106.44(b)(2).
Proposed Sec. 106.45(b)(3)(i) in the final regulations as Sec.
106.45(b)(5)(i).
Proposed Sec. 106.45(b)(3)(ii) in the final regulations as
Sec. 106.45(b)(5)(ii).
Proposed Sec. 106.45(b)(3)(iii) in the final regulations as
Sec. 106.45(b)(5)(iii).
Proposed Sec. 106.45(b)(3)(iv) in the final regulations as
Sec. 106.45(b)(5)(iv).
Proposed Sec. 106.45(b)(3)(v) in the final regulations as Sec.
106.45(b)(5)(v).
Proposed Sec. 106.45(b)(3)(vi) in the final regulations as
Sec. 106.45(b)(6)(ii).
Proposed Sec. 106.45(b)(3)(vii) in the final regulations as
Sec. 106.45(b)(6)(i).
Proposed Sec. 106.45(b)(3)(viii) in the final regulations as
Sec. 106.45(b)(5)(vi).
Proposed Sec. 106.45(b)(3)(ix) in the final regulations as
Sec. 106.45(b)(5)(vii).
Proposed Sec. 106.45(b)(4) in the final regulations as Sec.
106.45(b)(7).
Proposed Sec. 106.45(b)(5) in the final regulations as Sec.
106.45(b)(8).
Proposed Sec. 106.45(b)(6) in the final regulations as Sec.
106.45(b)(9).
Proposed Sec. 106.45(b)(7) in the final regulations as Sec.
106.45(b)(10).
\35\ E.g., Sec. Sec. 106.8(c), 106.44(a), 106.45(b)
(introductory sentence), 106.45(b)(1)(i), 106.45(b)(2),
106.45(b)(3)(i), 106.45(b)(7).
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Adoption and Adaption of the Supreme Court's Framework To Address
Sexual Harassment
Seven years after the passage of Title IX, the Supreme Court in
Cannon v. University of Chicago \36\ held that a judicially implied
private right of action exists under Title IX. Thirteen years after
that, in Franklin v. Gwinnett County Public Schools \37\ the Supreme
Court held that money damages are an available remedy in a private
lawsuit alleging a school's intentional discrimination in violation of
Title IX. The Cannon Court explained that Title IX has two primary
objectives: Avoiding use of Federal funds to support discriminatory
practices and providing individuals with effective protection against
discriminatory practices.\38\ Those two purposes are enforced both by
administrative agencies that disburse Federal financial assistance to
recipients, and by courts in private litigation. These two avenues of
enforcement (administrative enforcement by agencies, and judicial
enforcement by courts) have different features: For instance,
administrative enforcement places a recipient's Federal funding at
risk,\39\ while judicial enforcement does not.\40\ But the goal of both
avenues of enforcement (administrative and judicial) is the same: To
further the non-discrimination mandate of Title IX.
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\36\ 441 U.S. 677, 717 (1979).
\37\ 503 U.S. 60, 76 (1992).
\38\ Cannon v. Univ. of Chicago, 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.'').
\39\ 20 U.S.C. 1682.
\40\ Franklin, 503 U.S. at 76.
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In deciding whether to recognize a judicially implied right of
private action, the Cannon Court considered whether doing so would
conflict with administrative enforcement of Title IX. The Cannon Court
concluded that far from conflicting with administrative enforcement,
judicial enforcement would complement administrative enforcement
because some violations of Title IX may lend themselves to the
administrative remedy of terminating Federal financial assistance,
while other violations may lend themselves to a judicial remedy in
private litigation.\41\ The Cannon Court recognized that judicial and
administrative enforcement both help ensure ``the orderly enforcement
of the statute'' to achieve Title IX's purposes.\42\
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\41\ Cannon, 441 U.S. at 704-06.
\42\ Id. at 705-06 (``The award of individual relief to a
private litigant who has prosecuted her own suit is not only
sensible but is also fully consistent with--and in some cases even
necessary to--the orderly enforcement of the statute.''); see also
id. at 707 (``the individual remedy will provide effective
assistance to achieving the statutory purposes.'').
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In Franklin, the Supreme Court acknowledged that sexual harassment
and sexual abuse of a student by a teacher may mean the school itself
engaged in intentional sex discrimination.\43\ The Franklin Court held
that money damages is an available remedy in a private lawsuit under
Title IX, reasoning that even though Title IX is a Spending Clause
statute, schools have been on notice since enactment of Title IX that
intentional sex discrimination is prohibited under Title IX.\44\
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\43\ Franklin, 503 U.S. at 74-75 (holding intentional
discrimination by the school is alleged where the school's employee
sexually harassed a student).
\44\ Id. at 74 (noting that under Pennhurst State Sch. & Hosp.
v. Halderman, 451 U.S. 1 (1981), monetary damages may be appropriate
to remedy an intentional violation of a Spending Clause statute
because entities subject to the statute are on notice that
intentional violations of a statute may subject the entity to
monetary damages); see also Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 281 (1998) (noting that in Franklin, the plaintiff
alleged that ``school administrators knew about the harassment but
took no action, even to the point of dissuading her from initiating
charges'').
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In 1998, six years after Franklin, in Gebser v. Lago Vista
Independent School District \45\ the Supreme Court analyzed the
conditions under which a school district will be liable for money
damages for an employee sexually harassing a student. The Gebser Court
began its analysis by stating that while Franklin acknowledged that a
school employee sexually harassing a student may constitute the school
itself committing intentional discrimination on the basis of sex, it
was necessary to craft standards defining ``the contours of that
liability.'' \46\ The Gebser Court held that where a school has actual
knowledge of an employee sexually harassing a student but responds with
deliberate indifference to such knowledge, the school itself has
engaged in discrimination, subjecting the school to money damages in a
private lawsuit under Title IX.\47\ The following year, in 1999, in
Davis v. Monroe County Board of Education,\48\ the Supreme Court held
that where sexual harassment is committed by a peer rather than an
employee, the same standards of actual knowledge and deliberate
indifference apply.\49\ The Davis Court additionally crafted a
definition of when sex-based conduct becomes actionable sexual
harassment, defining the conduct as ``so severe, pervasive, and
objectively offensive'' that it denies its victims equal access to
education.\50\
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\45\ 524 U.S. 274 (1998).
\46\ Id. at 281 (``Franklin thereby establishes that a school
district can be held liable in damages in cases involving a
teacher's sexual harassment of a student; the decision, however,
does not purport to define the contours of that liability. We face
that issue squarely in this case.'').
\47\ Id. at 290.
\48\ 526 U.S. 629 (1999).
\49\ Id. at 650 (holding that ``funding recipients are properly
held liable in damages only where they are deliberately indifferent
to sexual harassment, of which they have actual knowledge, that is
so severe, pervasive, and objectively offensive that it can be said
to deprive the victims of access to the educational opportunities or
benefits provided by the school.'').
\50\ See id.
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The Supreme Court's Gebser and Davis cases built upon the Supreme
Court's previous Title IX decisions in Cannon and Franklin to establish
a three-part framework describing when a school's response to sexual
harassment constitutes the school itself committing discrimination. The
three parts of this framework are: Conditions that must exist to
trigger a school's response obligations (actionable sexual harassment,
and the school's actual knowledge) and the deliberate indifference
liability standard evaluating the sufficiency of the school's response.
We refer herein to the ``Gebser/Davis framework,'' consisting of a
definition of actionable sexual harassment, the school's actual
knowledge, and the school's deliberate indifference.
The Gebser/Davis framework is the appropriate starting point for
ensuring that the Department's Title IX regulations recognize the
conditions under which a school's response to sexual harassment
violates Title IX. Whether the available remedy is money damages (in
private litigation) or termination of Federal financial assistance (in
administrative enforcement), the Department's regulations must
acknowledge that when a school itself commits sex discrimination, the
school has violated Title IX.
In crafting the Gebser/Davis framework, the Supreme Court
emphasized that because a private lawsuit under Title IX subjects a
school to money damages, it was important for the Court to set
standards for a school's liability premised on the school's knowledge
and deliberate choice to permit sexual harassment, analogous to the way
that the Title IX statute provides that a school's Federal
[[Page 30033]]
financial assistance is terminated by the Department only after the
Department first advises the school of a Title IX violation, attempts
to secure voluntary compliance, and the school refuses to come into
compliance.\51\ Nothing in Gebser or Davis purports to restrict the
Gebser/Davis framework only to private lawsuits for money damages.\52\
Rather, the Supreme Court justified that framework as appropriate for
recognizing when a school's response to sexual harassment constitutes
intentional discrimination by the school, warranting exposure to money
damages in a private Title IX lawsuit. Neither Gebser nor Davis opined
as to what the appropriate conditions (e.g., definition of sexual
harassment, actual knowledge) and liability standard (e.g., deliberate
indifference) must or should be for the Department's administrative
enforcement.
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\51\ See, e.g., Gebser, 524 U.S. at 288-90 (examining the
administrative enforcement scheme set forth in the Title IX statute,
20 U.S.C. 1682, and concluding that ``[b]ecause the express remedial
scheme under Title IX is predicated upon notice to an `appropriate
person' and an opportunity to rectify any violation, 20 U.S.C. 1682,
we conclude, in the absence of further direction from Congress, that
the implied damages remedy should be fashioned along the same
lines'' and adopting the actual knowledge and deliberate
indifference standards).
\52\ The Department notes that courts also have used the Gebser/
Davis framework in awarding injunctive relief, not only in awarding
monetary damages. E.g., Fitzgerald v. Barnstable Sch. Dist., 555
U.S. 246, 255 (2009) (``In addition, this Court has recognized an
implied private right of action . . . In a suit brought pursuant to
this private right, both injunctive relief and damages are
available.'') (internal citations omitted; emphasis added); Hill v.
Cundiff, 797 F.3d 948, 972-73 (11th Cir. 2015) (reversing summary
judgment against plaintiff's claims for injunctive relief because a
jury could find that the alleged conduct was ``severe, pervasive,
and objectively offensive'' under Davis); B.H. ex rel. Hawk v.
Easton Area Sch. Dist., 725 F.3d 293, 322-23 (3d Cir. 2013)
(upholding preliminary injunction against school for banning
students from wearing bracelets because the school failed to show
that the ``bracelets would breed an environment of pervasive and
severe harassment'' under Davis); Haidak v. Univ. of Mass. at
Amherst, 299 F. Supp. 3d 242, 270 (D. Mass. 2018) (denying
plaintiff's request for a preliminary injunction because he failed
to show that the school was deliberately indifferent to an
environment of severe and pervasive discriminatory conduct under
Davis), aff'd in part, vacated in part, remanded by Haidak v. Univ.
of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019).
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The Department has regulatory authority to select conditions and a
liability standard different from those used in the Gebser/Davis
framework, because the Department has authority to issue rules that
require recipients to take administrative actions to effectuate Title
IX's non-discrimination mandate. For example, longstanding Department
regulations require recipients to designate an employee to coordinate
the recipient's efforts to comply with Title IX,\53\ to file an
assurance of compliance with the Department,\54\ and to adopt and
publish grievance procedures for handling complaints of sex
discrimination.\55\ Failure to do any of the foregoing does not, by
itself, mean the school has committed sex discrimination, but the
Department lawfully may enforce such administrative requirements
because the Department has authority to issue and enforce rules that
effectuate the purpose of Title IX.\56\
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\53\ 34 CFR 106.8(a).
\54\ 34 CFR 106.4(a).
\55\ 34 CFR 106.8(b).
\56\ See, e.g., Gebser, 524 U.S. at 292 (``And in any event, the
failure to promulgate a grievance procedure does not itself
constitute `discrimination' under Title IX. Of course, the
Department of Education could enforce the requirement
administratively: Agencies generally have authority to promulgate
and enforce requirements that effectuate the statute's non-
discrimination mandate, 20 U.S.C. 1682, even if those requirements
do not purport to represent a definition of discrimination under the
statute. E.g., Grove City [v. Bell, 465 U.S. 555, 574-575 (1984),
superseded by statute on a different point by the Civil Rights
Restoration Act of 1987] (permitting administrative enforcement of
regulation requiring college to execute an `Assurance of Compliance'
with Title IX). We have never held, however, that the implied
private right of action under Title IX allows recovery in damages
for violation of those sorts of administrative requirements.'').
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These final regulations begin with the Gebser/Davis framework, so
that when a school itself commits sex discrimination by subjecting its
students or employees to sexual harassment, that form of discrimination
is clearly prohibited by these final regulations. The Department adopts
the Gebser/Davis framework in these final regulations by defining
``sexual harassment,'' defining ``actual knowledge,'' and describing
``deliberate indifference,'' consistent with Gebser and Davis.
The Department does not simply codify the Gebser/Davis framework.
Under the Department's statutory authority to issue rules to effectuate
the purpose of Title IX, the Department reasonably expands the
definitions of sexual harassment and actual knowledge, and the
deliberate indifference standard, to tailor the Gebser/Davis framework
to the administrative enforcement context.
The Department believes that adapting the Gebser/Davis framework is
appropriate for administrative enforcement, because the adapted
conditions (definitions of sexual harassment and actual knowledge) and
liability standard (deliberate indifference) reflected in these final
regulations promote important policy objectives with respect to a
recipient's legal obligations to respond to sexual harassment. As
explained in more detail in the ``Actual Knowledge'' and ``Sexual
Harassment'' subsections of the ``Section 106.30 Definitions'' section
of this preamble, and the ``Section 106.44(a) Deliberate Indifference
Standard'' subsection of the ``Section 106.44(a) Recipient's Response
to Sexual Harassment, Generally'' section of this preamble, the
Department believes that:
Including the Davis definition of sexual harassment for
Title IX purposes as ``severe, pervasive, and objectively offensive''
conduct that effectively denies a person equal educational access helps
ensure that Title IX is enforced consistent with the First Amendment.
At the same time, the Department adapts the Davis definition of sexual
harassment in these final regulations by also expressly including quid
pro quo harassment and Clery Act/VAWA sex offenses. This expanded
definition of sexual harassment \57\ ensures that quid pro quo
harassment and Clery Act/VAWA sex offenses trigger a recipient's
response obligations, without needing to be evaluated for severity,
pervasiveness, offensiveness, or denial of equal access, because
prohibiting such conduct presents no First Amendment concerns and such
serious misconduct causes denial of equal educational access;
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\57\ The final regulations define sexual harassment in Sec.
106.30 as follows: Sexual harassment means conduct on the basis of
sex that satisfies one or more of the following:
(1) An employee of the recipient conditioning the provision of
an aid, benefit, or service of the recipient on an individual's
participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so
severe, pervasive, and objectively offensive that it effectively
denies a person equal access to the recipient's education program or
activity; or
(3) ``Sexual assault'' as defined in 20 U.S.C. 1092(f)(6)(A)(v),
``dating violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic
violence'' as defined in 34 U.S.C. 12291(a)(8), or ``stalking'' as
defined in 34 U.S.C. 12291(a)(30).
---------------------------------------------------------------------------
Using the Gebser/Davis concept of actual knowledge,
adapted in these final regulations by including notice to any
recipient's Title IX Coordinator,\58\ or notice to any elementary and
secondary school employee,\59\ furthers the Department's policy goals
of ensuring that elementary and secondary schools
[[Page 30034]]
respond whenever a school employee knows of sexual harassment or
allegations of sexual harassment, while respecting the autonomy of
students at postsecondary institutions to decide whether or when to
report sexual harassment; and
---------------------------------------------------------------------------
\58\ As discussed throughout this preamble, the final
regulations ensure that every recipient gives its educational
community clear, accessible options for reporting sexual harassment
to the recipient's Title IX Coordinator. See, e.g., Sec. 106.8.
\59\ The final regulations define ``actual knowledge'' in Sec.
106.30 as notice of sexual harassment or allegations of sexual
harassment to a recipient's Title IX Coordinator or any official of
the recipient who has authority to institute corrective measures on
behalf of the recipient, or to any employee of an elementary or
secondary school.
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Using the deliberate indifference standard, adapted in
these final regulations by specifying actions that every recipient must
take in response to every instance of actual knowledge of sexual
harassment,\60\ ensures that recipients respond to sexual harassment by
offering supportive measures designed to restore or preserve a
complainant's equal educational access without treating a respondent as
responsible until after a fair grievance process. The deliberate
indifference standard achieves these aims without unnecessarily second
guessing a recipient's decisions with respect to appropriate supportive
measures, disciplinary sanctions, and remedies when the recipient
responds to sexual harassment incidents, which inherently present fact-
specific circumstances.\61\
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\60\ The final regulations require recipients to respond
promptly by: offering supportive measures to every complainant
(i.e., an individual who is alleged to be the victim of sexual
harassment); refraining from imposing disciplinary sanctions on a
respondent without first following a prescribed grievance process;
investigating every formal complaint filed by a complainant or
signed by a Title IX Coordinator; and effectively implementing
remedies designed to restore or preserve a complainant's equal
educational access any time a respondent is found responsible for
sexual harassment. Sec. 106.44(a); Sec. 106.44(b)(1); Sec.
106.45(b)(3)(i); Sec. 106.45(b)(1)(i); Sec. 106.45(b)(7)(iv).
\61\ As explained below in the ``Deliberate Indifference''
subsection of the preamble, the final regulations apply a deliberate
indifference standard for evaluating a recipient's decisions with
respect to selection of supportive measures and remedies, and these
final regulations do not mandate or scrutinize a recipient's
decisions with respect to disciplinary sanctions imposed on a
respondent after a respondent has been found responsible for sexual
harassment.
The Department chooses to build these final regulations upon the
foundation established by the Supreme Court, to provide consistency
between the rubrics for judicial and administrative enforcement of
Title IX, while adapting that foundation for the administrative
process, in a manner that achieves important policy objectives unique
to sexual harassment in education programs or activities.
Differences Between Standards in Department Guidance and These Final
Regulations
The Department's guidance on schools' responses to sexual
harassment recommended conditions triggering a school's response
obligations, and a liability standard, that differed in significant
ways from the Gebser/Davis framework and from the approach taken in
these final regulations. With respect to the three-part Gebser/Davis
framework (i.e., a definition of sexual harassment, actual knowledge
condition, and deliberate indifference standard), the Department's
guidance recommended a broader definition of actionable sexual
harassment, a constructive notice condition, and a standard closer to
strict liability than to deliberate indifference.
The Department's 1997 Guidance used a definition of sexual
harassment described as ``sexually harassing conduct (which can include
unwelcome sexual advances, requests for sexual favors, and other
verbal, nonverbal, or physical conduct of a sexual nature) by an
employee, by another student, or by a third party'' and indicated that
a school's response was necessary whenever sexual harassment became
``sufficiently severe, persistent, or pervasive to limit a student's
ability to participate in or benefit from an education program or
activity, or to create a hostile or abusive educational environment.''
\62\ The 1997 Guidance recommended that schools take action on the
basis of constructive notice rather than actual knowledge.\63\ Instead
of a deliberate indifference standard, the 1997 Guidance indicated that
the Department would find a school in violation where the school's
response failed to stop the harassment and prevent its recurrence.\64\
---------------------------------------------------------------------------
\62\ 1997 Guidance (``Sexually harassing conduct (which can
include unwelcome sexual advances, requests for sexual favors, and
other verbal, nonverbal, or physical conduct of a sexual nature) by
an employee, by another student, or by a third party that is
sufficiently severe, persistent, or pervasive to limit a student's
ability to participate in or benefit from an education program or
activity, or to create a hostile or abusive educational
environment.'').
\63\ 1997 Guidance (``[A] school will always be liable for even
one instance of quid pro quo harassment by a school employee . . .
whether or not it knew, should have known, or approved of the
harassment at issue.''); id. (``a school will be liable under Title
IX if its students sexually harass other students if . . . the
school knows or should have known of the harassment'').
\64\ 1997 Guidance (``Once a school has notice of possible
sexual harassment of students--whether carried out by employees,
other students, or third parties--it should take immediate and
appropriate steps to investigate or otherwise determine what
occurred and take steps reasonably calculated to end any harassment,
eliminate a hostile environment if one has been created, and prevent
harassment from occurring again.'').
---------------------------------------------------------------------------
The 2001 Guidance acknowledged that in the time period between the
Department issuing the 1997 Guidance and the 2001 Guidance, the Supreme
Court's Gebser and Davis cases addressed the subject of school
responses to sexual harassment under Title IX.\65\ The 2001 Guidance
reasoned that because those Supreme Court cases were decided in the
context of private lawsuits for money damages under Title IX, the
Department was not obligated to adopt the same standards for
administrative enforcement.\66\ The 2001 Guidance noted that the Gebser
and Davis decisions analogized to Title IX's statutory administrative
enforcement scheme, which provides that a school receives notice and an
opportunity to correct a violation before an agency terminates Federal
financial assistance.\67\ The 2001 Guidance reasoned that because a
school always receives notice of a violation and opportunity to
voluntarily correct a violation before the Department may terminate
Federal financial assistance, the Department was not required to use
the actual knowledge condition or deliberate indifference standard, and
the 2001 Guidance continued the 1997 Guidance's approach to
constructive notice and strict liability.\68\
---------------------------------------------------------------------------
\65\ 2001 Guidance at iii-iv.
\66\ Id. at ii, iv.
\67\ Id. at iii-iv (``The Gebser Court recognized and contrasted
lawsuits for money damages with the incremental nature of
administrative enforcement of Title IX. In Gebser, the Court was
concerned with the possibility of a money damages award against a
school for harassment about which it had not known. In contrast, the
process of administrative enforcement requires enforcement agencies
such as OCR to make schools aware of potential Title IX violations
and to seek voluntary corrective action before pursuing fund
termination or other enforcement mechanisms.'').
\68\ Id. at 10 (a ``school has notice of harassment if a
responsible school employee actually knew or, in the exercise of
reasonable care, should have known about the harassment.'')
(``Schools are responsible for taking prompt and effective action to
stop the harassment and prevent its recurrence'' and the recipient
is ``also responsible for remedying any effects of the harassment on
the victim . . . .'').
---------------------------------------------------------------------------
The 2001 Guidance nonetheless asserted that consistency between the
judicial and administrative rubrics was desirable, and with respect to
a definition of sexual harassment, the 2001 Guidance stated that a
multiplicity of definitions (i.e., one definition for private lawsuits
and another for administrative enforcement) would not serve the purpose
of consistency between judicial and administrative enforcement.\69\ The
2001 Guidance asserted that the Davis definition of actionable sexual
harassment used different words (i.e., severe, pervasive, and
objectively offensive) but was consistent with the definition of sexual
harassment used in the 1997 Guidance (i.e., severe, persistent, or
pervasive).\70\
[[Page 30035]]
The 2001 Guidance proceeded to describe sexual harassment as
``unwelcome conduct of a sexual nature'' \71\ that is ``severe,
persistent, or pervasive'' \72\ and asserted that this definition was
consistent with the Davis definition because both definitions ``are
contextual descriptions intended to capture the same concept--that
under Title IX, the conduct must be sufficiently serious that it
adversely affects a student's ability to participate in or benefit from
the school's program.'' \73\
---------------------------------------------------------------------------
\69\ Id. at vi (``schools benefit from consistency and
simplicity in understanding what is sexual harassment for which the
school must take responsive action. A multiplicity of definitions
would not serve this purpose.'').
\70\ Id. at v-vi.
\71\ 2001 Guidance at 2. The 2001 Guidance, like the 1997
Guidance, emphasized that sexual harassment can include unwelcome
sexual advances, requests for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual nature, by an employee,
student, or third party. Similarly, ``sexual harassment'' defined in
these final regulations in Sec. 106.30, includes the foregoing
conduct of a sexual nature, as well as other unwelcome conduct ``on
the basis of sex'' even if the conduct is devoid of sexual content.
\72\ 2001 Guidance at vi.
\73\ Id.
---------------------------------------------------------------------------
The withdrawn 2011 Dear Colleague Letter continued to define sexual
harassment as ``unwelcome conduct of a sexual nature'' and added that
``[s]exual violence is a form of sexual harassment prohibited by Title
IX'' without defining sexual violence.\74\ The withdrawn 2011 Dear
Colleague Letter continued the approach from the 2001 Guidance that
sexual harassment must be ``sufficiently serious that it interferes
with or limits a student's ability to participate in or benefit from
the school's program'' but omitted the description of actionable sexual
harassment as ``severe, persistent, or pervasive'' that had been
utilized in the 1997 Guidance and the 2001 Guidance.\75\ The withdrawn
2011 Dear Colleague Letter continued to recommend that schools act upon
constructive notice (rather than actual knowledge) and to hold schools
accountable under a strict liability standard rather than deliberate
indifference.\76\
---------------------------------------------------------------------------
\74\ 2011 Dear Colleague Letter at 3.
\75\ 2011 Dear Colleague Letter at 3 (``As explained in OCR's
2001 Guidance, when a student sexually harasses another student, the
harassing conduct creates a hostile environment if the conduct is
sufficiently serious that it interferes with or limits a student's
ability to participate in or benefit from the school's program. The
more severe the conduct, the less need there is to show a repetitive
series of incidents to prove a hostile environment, particularly if
the harassment is physical. Indeed, a single or isolated incident of
sexual harassment may create a hostile environment if the incident
is sufficiently severe. For instance, a single instance of rape is
sufficiently severe to create a hostile environment.'').
\76\ 2011 Dear Colleague Letter at 4 (``If a school knows or
reasonably should know about student-on-student harassment that
creates a hostile environment, Title IX requires the school to take
immediate action to eliminate the harassment, prevent its
recurrence, and address its effects.''); id. at 4 fn. 12 (``This is
the standard for administrative enforcement of Title IX and in court
cases where plaintiffs are seeking injunctive relief. . . . The
standard in private lawsuits for monetary damages is actual
knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 643, 648 (1999).'').
---------------------------------------------------------------------------
The 2017 Q&A used the definition of actionable sexual harassment as
described in the 2001 Guidance, stating that ``when sexual misconduct
is so severe, persistent, or pervasive as to deny or limit a student's
ability to participate in or benefit from the school's programs or
activities, a hostile environment exists and the school must respond.''
\77\ The 2017 Q&A relied on the 2001 Guidance's condition of
constructive notice rather than actual knowledge.\78\ Although the 2017
Q&A did not expressly address the deliberate indifference versus strict
liability standard, it directed recipients to the 2001 Guidance for
topics not addressed in the 2017 Q&A,\79\ including what it means for a
school to ``respond appropriately'' when the school ``knows or
reasonably should know'' \80\ of a sexual misconduct incident, thereby
retaining the 2001 Guidance's reliance on constructive notice and
strict liability.
---------------------------------------------------------------------------
\77\ 2017 Q&A at 1.
\78\ 2017 Q&A at 2 (citing to the 2001 Guidance for the
proposition that ``where the school knows or reasonably should know
of an incident of sexual misconduct, the school must take steps to
understand what occurred and to respond appropriately'') (emphasis
added).
\79\ See 2017 Q&A at 1 (``The Department of Education intends to
engage in rulemaking on the topic of schools' Title IX
responsibilities concerning complaints of sexual misconduct,
including peer-on-peer sexual harassment and sexual violence. The
Department will solicit input from stakeholders and the public
during that rulemaking process. In the interim, these questions and
answers--along with the [2001] Revised Sexual Harassment Guidance
previously issued by the Office for Civil Rights--provide
information about how OCR will assess a school's compliance with
Title IX.'') (emphasis added).
\80\ Id.
---------------------------------------------------------------------------
To the extent that the Department intended for schools to
understand the 1997 Guidance, the 2001 Guidance, the withdrawn 2011
Dear Colleague Letter, or the 2017 Q&A as descriptions of a school's
legal obligations under Title IX, those guidance documents directed
schools to apply standards that failed to adequately address the unique
challenges presented by sexual harassment incidents in a school's
education program or activity.
The Department believes that sexual harassment affects ``the equal
access to education that Title IX is designed to protect'' \81\ and
this problem warrants legally binding regulations addressing sexual
harassment as a form of sex discrimination under Title IX, instead of
mere guidance documents which are not binding and do not have the force
and effect of law.\82\ The starting place for describing such legal
obligations is adoption of the Gebser/Davis framework because that
framework describes when sexual harassment constitutes a school itself
discriminating on the basis of sex in violation of Title IX. At the
same time, the Department adapts the three-part Gebser/Davis framework
to further the purposes of Title IX in the context of administrative
enforcement, holding schools responsible for taking more actions than
what the Gebser/Davis framework requires.
---------------------------------------------------------------------------
\81\ Davis, 526 U.S. at 652.
\82\ Perez v. Mortgage Bankers' Ass'n, 575 U.S. 92, 97 (2015).
---------------------------------------------------------------------------
The Department's adaptions of the three-part Gebser/Davis framework
achieve important policy objectives that arise in the context of a
school's response to reports, allegations, or incidents of sexual
harassment in a school's education program or activity, including
respect for freedom of speech and academic freedom,\83\ respect for
complainants' autonomy,\84\ protection of complainants' equal
educational access while respecting the decisions of State and local
educators to determine appropriate supportive measures, remedies, and
disciplinary sanctions,\85\ consistency with constitutional due process
and fundamental fairness, and clear legal obligations that enable
robust administrative enforcement of Title IX violations.\86\ The
adaptions of the Gebser/Davis framework in these final regulations do
not codify the Department's guidance yet provide recipients with
flexibility, subject to the legal requirements in these final
regulations, to respond to a greater range of misconduct, operate on a
condition of constructive notice, or respond under a strict liability
standard, if the recipient chooses to adopt those guidance-based
standards for itself, or if the recipient is
[[Page 30036]]
required under State or other laws to adopt those standards.
---------------------------------------------------------------------------
\83\ For further discussion see the ``Sexual Harassment''
subsection of the ``Section 106.30 Definitions'' section of this
preamble.
\84\ For discussion of the way that an actual knowledge
standard, and a requirement for recipients to investigate upon
receipt of a formal complaint, respect complainant's autonomy, see
the ``Actual Knowledge'' and ``Formal Complaint'' subsections of the
``Section 106.30 Definitions'' section of this preamble.
\85\ For further discussion, see the ``Deliberate Indifference''
subsection of this ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section and the ``Section
106.44(a) Deliberate Indifference Standard'' subsection of the
``Section 106.44 Recipient's Response to Sexual Harassment,
Generally'' section of this preamble.
\86\ For further discussion, see the ``Role of Due Process in
the Grievance Process'' section of this preamble.
---------------------------------------------------------------------------
Definition of Sexual Harassment
Importantly, the final regulations continue the 1997 Guidance and
2001 Guidance approach of including as sexual harassment unwelcome
sexual advances, requests for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual nature by an employee, by
another student, or by a third party.\87\ Section 106.30 provides that
``sexual harassment'' is conduct ``on the basis of sex'' including
``unwelcome conduct.'' This definition therefore includes unwelcome
conduct of a sexual nature, or other unwelcome conduct on the basis of
sex, consistent with Department guidance. Equally as important is
recognizing that these final regulations continue the withdrawn 2011
Dear Colleague Letter's express acknowledgment that sexual violence is
a type of sexual harassment; the difference is that these final
regulations expressly define sex-based violence, by reference to the
Clery Act and VAWA.
---------------------------------------------------------------------------
\87\ 2001 Guidance at 2; 1997 Guidance.
---------------------------------------------------------------------------
The way in which these final regulations differ from guidance in
defining actionable sexual harassment is by returning to the 2001
Guidance's premise that a consistent definition of sexual harassment
used in both judicial and administrative enforcement is appropriate.
Despite the 2001 Guidance's assertion that using ``different words''
from the Davis definition of actionable sexual harassment did not
result in inconsistent definitions for use in judicial and
administrative enforcement, the Department has reconsidered that
assertion because that assertion did not bear out over time.\88\ These
final regulations thus use (as one of three categories of conduct that
constitutes sexual harassment) the Davis Court's phrasing verbatim:
unwelcome conduct that a reasonable person would determine is ``so
severe, pervasive, and objectively offensive'' that it effectively
denies a person equal access to education.\89\ The Department chooses
to return to the premise expressed in the 2001 Guidance: The Department
has an interest in providing recipients with ``consistency and
simplicity in understanding what is sexual harassment for which the
school must take responsive action. A multiplicity of definitions would
not serve this purpose.'' \90\
---------------------------------------------------------------------------
\88\ The ``Sexual Harassment'' subsection of the ``Section
106.30 Definitions'' section of this preamble discusses in greater
detail how the Davis definition of sexual harassment as ``severe,
pervasive, and objectively offensive'' comports with First Amendment
protections, and the way in which a broader definition, such as
severe, persistent, or pervasive (as used in the 1997 Guidance and
2001 Guidance), has led to infringement of rights of free speech and
academic freedom of students and faculty.
\89\ Davis, 526 U.S. at 650 (``We thus conclude that funding
recipients are properly held liable in damages only where they are
deliberately indifferent to sexual harassment, of which they have
actual knowledge, that is so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to
the educational opportunities or benefits provided by the
school.''); Sec. 106.30 (defining ``sexual harassment'' to include
conduct ``on the basis of sex'' including ``unwelcome conduct'' that
a reasonable person would determine to be so severe, pervasive, and
objectively offensive that it effectively denies a person equal
access to the recipient's education program or activity).
\90\ 2001 Guidance at vi.
---------------------------------------------------------------------------
In addition to using the Davis definition verbatim (i.e., conduct
that is so severe, pervasive, and objectively offensive that it
effectively denies a person equal access to education), the proposed
regulations defined ``sexual harassment'' to also include sexual
assault as defined in the Clery Act. In these final regulations, the
Department retains reference to sexual assault under the Clery Act, and
additionally incorporates the definitions of dating violence, domestic
violence, and stalking in the Clery Act as amended by VAWA.\91\
Incorporating these four Clery Act/VAWA offenses clarifies that sexual
harassment includes a single instance of sexual assault, dating
violence, domestic violence, or stalking. Such incorporation is
consistent with the Supreme Court's observation in Davis that a single
instance of sufficiently severe harassment on the basis of sex may have
the systemic effect of denying the victim equal access to an education
program or activity.\92\ However, the Department's inclusion of sexual
assault, dating violence, domestic violence, and stalking in the Sec.
106.30 definition of sexual harassment, without requiring those sex
offenses to meet the Davis elements of severity, pervasiveness, and
objective offensiveness, appropriately guards against, for instance,
some sexual assaults or incidents of dating violence or domestic
violence being covered under Title IX while other sexual assaults or
incidents of dating violence or domestic violence are deemed not to be
``pervasive'' enough to meet the Davis standard. Similarly, this
approach guards against a pattern of sex-based stalking being deemed
``not severe'' even though the pattern of behavior is ``pervasive.''
Such incorporation also provides consistency and clarity with respect
to the intersection among Title IX, the Clery Act, and VAWA.\93\
---------------------------------------------------------------------------
\91\ Section 106.30 (defining ``sexual harassment'' to include
sexual assault, dating violence, domestic violence or stalking as
defined in the Clery Act and VAWA statutes).
\92\ See Davis, 526 U.S. at 652-53 (noting that with respect to
``severe, gender-based mistreatment'' even ``a single instance of
sufficiently severe one-on-one peer harassment could be said to''
have ``the systemic effect of denying the victim equal access to an
educational program or activity.''). Although the withdrawn 2011
Dear Colleague Letter expressly disclaimed reliance on Davis, that
guidance also stated that ``The more severe the conduct, the less
need there is to show a repetitive series of incidents to prove a
hostile environment, particularly if the harassment is physical.
Indeed, a single or isolated incident of sexual harassment may
create a hostile environment if the incident is sufficiently severe.
For instance, a single instance of rape is sufficiently severe to
create a hostile environment.'' 2011 Dear Colleague Letter at 3.
\93\ Although elementary and secondary schools are not subject
to the Clery Act, elementary and secondary school recipients must
look to the definitions of sexual assault, dating violence, domestic
violence, and stalking as defined in the Clery Act and VAWA in order
to address those forms of sexual harassment under Title IX. These
final regulations do not, however, alter the regulations implemented
under the Clery Act or an institution of higher education's
obligations, if any, under regulations implementing the Clery Act.
---------------------------------------------------------------------------
The final regulations retain the proposed rules' definition of
``quid pro quo'' harassment in the definition of sexual harassment.\94\
The Department recognized quid pro quo sexual harassment in its 1997
Guidance and 2001 Guidance, and cited to court cases that recognized
quid pro quo sexual harassment under Title IX.\95\
---------------------------------------------------------------------------
\94\ Section 106.30 defines ``sexual harassment'' to include: An
employee of the recipient conditioning the provision of an aid,
benefit, or service of the recipient on the individual's
participation in unwelcome sexual conduct. This type of harassment
is commonly referred to as quid pro quo sexual harassment.
\95\ See, e.g., 2001 Guidance at 5, 10 (citing Alexander v. Yale
University, 459 F. Supp. 1, 4 (D. Conn. 1977), aff'd, 631 F.2d 178
(2d Cir. 1980) (stating that a claim ``that academic advancement was
conditioned upon submission to sexual demands constitutes [a claim
of] sex discrimination in education . . .'')); see also Crandell v.
New York Coll., Osteopathic Med., 87 F. Supp. 2d 304, 318 (S.D.N.Y.
2000) (finding that allegations that a supervisory physician
demanded that a student physician spend time with him and have lunch
with him or receive a poor evaluation, in light of the totality of
his alleged sexual comments and other inappropriate behavior,
constituted a claim of quid pro quo harassment); Kadiki v. Va.
Commonwealth Univ., 892 F. Supp. 746, 752 (E.D. Va. 1995). The 2011
Dear Colleague Letter focused on peer harassment but expressly
referred to the 2001 Guidance for the appropriate approach to sexual
harassment by employees (i.e., quid pro quo harassment). 2011 Dear
Colleague Letter at 2, fn. 8 (``This letter focuses on peer sexual
harassment and violence. Schools' obligations and the appropriate
response to sexual harassment and violence committed by employees
may be different from those described in this letter. Recipients
should refer to the 2001 Guidance for further information about
employee harassment of students.''); see also 2017 Q&A at 1 (not
referencing quid pro quo sexual harassment, but directing recipients
to look to the 2001 Guidance regarding matters not specifically
addressed in the 2017 Q&A). Quid pro quo sexual harassment also is
recognized under Title VII. E.g., Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 752-53 (1998).
---------------------------------------------------------------------------
[[Page 30037]]
The Honorable Janet Napolitano, the President of the University of
California, who is a former Governor and Attorney General of Arizona
and a former United States Secretary of Homeland Security, observed
that under the Department's guidance recipients had to grapple with ``a
broad continuum of conduct, from offensive statements to gang rape''
\96\ and the Department's guidance, especially after the 2001 Guidance
was supplemented and altered by the withdrawn 2011 Dear Colleague
Letter, caused recipients ``uncertainty and confusion about how to
appropriately comply.'' \97\ By utilizing precise definitions of
conduct that constitutes sexual harassment, the Department aims to
reduce uncertainty and confusion for recipients, students, and
employees, while ensuring conduct that jeopardizes equal educational
access remains conduct to which a recipient must respond under Title
IX.
---------------------------------------------------------------------------
\96\ Janet Napolitano, ``Only Yes Means Yes'': An Essay on
University Policies Regarding Sexual Violence and Sexual Assault, 33
Yale L. & Pol'y Rev. 387, 388 (2015).
\97\ Id.
---------------------------------------------------------------------------
Some commenters requested that the Department more closely align
its definition of actionable sexual harassment with the definition that
the Supreme Court uses in the context of discrimination because of sex
in the workplace under Title VII. Specifically, commenters urged the
Department to use a definition of sexual harassment that is ``severe or
pervasive'' because that definition is used under Title VII \98\ and
the 1997 Guidance and 2001 Guidance relied on Title VII case law in
using the definition of sexual harassment that is ``severe, persistent,
or pervasive.'' \99\ However, in Davis, a case concerning sexual
harassment of a fifth-grade student by another student, the Supreme
Court did not adopt the Title VII definition of sexual harassment for
use under Title IX, defining actionable sexual harassment for Title IX
purposes as conduct that is ``severe, pervasive, and objectively
offensive.'' \100\
---------------------------------------------------------------------------
\98\ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(``For sexual harassment to be actionable, it must be sufficiently
severe or pervasive to alter the conditions of [the victim's]
employment and create an abusive working environment.'') (internal
quotation marks and citation omitted) (emphasis added).
\99\ 2001 Guidance at vi (stating that ``the definition of
hostile environment sexual harassment found in OCR's 1997 guidance .
. . derives from Title VII caselaw'').
\100\ Davis, 526 U.S. at 652 (``Rather, in the context of
student-on-student harassment, damages are available only where the
behavior is so severe, pervasive, and objectively offensive that it
denies its victims the equal access to education that Title IX is
designed to protect.'') (emphasis added).
---------------------------------------------------------------------------
The Department is persuaded by the Supreme Court's reasoning that
elementary and secondary ``schools are unlike the adult workplace and
that children may regularly interact in a manner that would be
unacceptable among adults.'' \101\ These final regulations also are
consistent with the Equal Access Act, requiring that public secondary
schools provide equal access to limited public forums without
discriminating against the students ``on the basis of the religious,
political, philosophical, or other content of speech.'' \102\
---------------------------------------------------------------------------
\101\ Davis, 526 U.S. at 651-52 (citing Meritor, 477 U.S. at
67).
\102\ 20 U.S.C. 4071(a).
---------------------------------------------------------------------------
Similarly, an institution of higher education differs from the
workplace. In this regard, these final regulations are consistent with
the sense of Congress in the Higher Education Act of 1965, as amended,
that ``an institution of higher education should facilitate the free
and open exchange of ideas.'' \103\ The sense of Congress is that
institutions of higher education should facilitate the free and robust
exchange of ideas,\104\ but such an exchange may prove disruptive,
undesirable, or impermissible in the workplace. Moreover, workplaces
are generally expected to be free from conduct and conversation of a
sexual nature, and it is common for employers to prohibit or discourage
employees from engaging in romantic interactions at work.\105\ By
contrast, it has become expected that college and university students
enjoy personal freedom during their higher education experience,\106\
and it is not common for an institution to prohibit or discourage
students from engaging in romantic interactions in the college
environment.\107\
---------------------------------------------------------------------------
\103\ 20 U.S.C. 1101a(a)(2)(C).
\104\ 20 U.S.C. 1101a(a)(2)(C).
\105\ See, e.g., Vicki Schultz, The Sanitized Workplace, 112
Yale L. J. 2061, 2191 (2003) (examining the trend through the
twentieth century toward a societal expectation that workplaces must
be rational environments ``devoid of sexuality and other distracting
passions'' in which employers ``increasingly ban or discourage
employee romance'' and observing that both feminist theory and
classical-management theory supported this trend, the former on
equality grounds and the latter on efficiency grounds, but arguing
that workplaces should instead focus on sex equality without
``chilling intimacy and solidarity among employees of both a sexual
and nonsexual variety.''); cf. Rebecca K. Lee, The Organization as a
Gendered Entity: A Response to Professor Schultz's ``The Sanitized
Workplace'', 15 Columbia J. of Gender & Law 609 (2006) (rebutting
the notion that a sexualized workplace culture would be beneficial
for sex equality, arguing that the ``probable harms'' would
``outweigh the possible benefits of allowing sexuality to prosper in
the work organization'' and defending the ``sexuality-constrained
organizational paradigm in light of concerns regarding the role of
work, on-the-job expectations, and larger workplace dynamics.'').
\106\ Kristen Peters, Protecting the Millennial College Student,
16 S. Cal. Rev. of L. & Social Justice 431, 437 (2007) (noting that
the doctrine of in loco parentis in the higher education context
diminished in the 1960s and ``[b]y the early 1970s, college students
had successfully vindicated their contractual and civil rights,
redefining the college-student relationship to emphasize student
freedom and abrogate college authority.'') (internal citations
omitted).
\107\ Justin Neidig, Sex, Booze, and Clarity: Defining Sexual
Assault on a College Campus, 16 William & Mary J. of Women & the L.
179, 180-81 (2009) (``College is an exciting and often confusing
time for students. This new experience is defined by coed dorms,
near constant socializing that often involves alcohol, and the
ability to retreat to a private room with no adult supervision. The
environment creates a socialization process where appropriate
behavior is defined by the actions of peers, particularly when it
comes to sexual behavior.'') (internal citations omitted).
---------------------------------------------------------------------------
The Department does not wish to apply the same definition of
actionable sexual harassment under Title VII to Title IX because such
an application would equate workplaces with educational environments,
whereas both the Supreme Court and Congress have noted the unique
differences of educational environments from workplaces and the
importance of respecting the unique nature and purpose of educational
environments. As discussed further in the ``Sexual Harassment''
subsection of the ``Section 106.30 Definitions'' section of this
preamble, applying the same definition of actionable sexual harassment
under Title VII to Title IX may continue to cause recipients to chill
and infringe upon the First Amendment freedoms of students, teachers,
and faculty by broadening the scope of prohibited speech and
expression.
The Department's use of the Davis definition of sexual harassment
in these final regulations returns to the Department's intent stated in
the 2001 Guidance: That the Department's definition of sexual
harassment should be consistent with the definition of sexual
harassment in Davis. The Davis definition of sexual harassment adopted
in these final regulations, adapted by the Department's inclusion of
quid pro quo harassment and the four Clery Act/VAWA offenses, will help
prevent infringement of First Amendment freedoms, clarify confusion by
precisely defining sexual violence independent from the Davis
definition, clarify the intersection among Title IX, the Clery Act, and
VAWA with respect to sex-based offenses, and ensure that recipients
must respond to students and employees victimized by sexual harassment
that jeopardizes a person's equal educational access.
Recipients may continue to address harassing conduct that does not
meet the Sec. 106.30 definition of sexual harassment, as acknowledged
by the Department's change to Sec. 106.45(b)(3)(i)
[[Page 30038]]
to clarify that dismissal of a formal complaint because the allegations
do not meet the Title IX definition of sexual harassment, does not
preclude a recipient from addressing the alleged misconduct under other
provisions of the recipient's own code of conduct.\108\
---------------------------------------------------------------------------
\108\ Section 106.45(b)(3). Similarly, nothing in these final
regulations prevents a recipient from addressing conduct that is
outside the Department's jurisdiction due to the conduct
constituting sexual harassment occurring outside the recipient's
education program or activity, or occurring against a person who is
not located in the United States.
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Actual Knowledge
The Department adopts and adapts the Gebser/Davis framework's
condition of ``actual knowledge.'' \109\ The Supreme Court held that a
recipient with actual knowledge of sexual harassment commits
intentional discrimination (if the recipient responds in a deliberately
indifferent manner).\110\ Because Title IX is a statute ``designed
primarily to prevent recipients of Federal financial assistance from
using the funds in a discriminatory manner,'' \111\ it is a recipient's
own misconduct--not the sexually harassing behavior of employees,
students, or other third parties--that subjects the recipient to
liability in a private lawsuit under Title IX, and the recipient cannot
commit its own misconduct unless the recipient first knows of the
sexual harassment that needs to be addressed.\112\ Because Congress
enacted Title IX under its Spending Clause authority, the obligations
it imposes on recipients are in the nature of a contract.\113\ The
Supreme Court held that ``a damages remedy will not lie under Title IX
unless an official who at a minimum has authority to address the
alleged discrimination and to institute corrective measures on the
recipient's behalf has actual knowledge of discrimination in the
recipient's programs and fails adequately to respond.'' \114\ The
Supreme Court reasoned that it would be ``unsound'' for the Court to
allow a private lawsuit (with the potential for money damages) against
a recipient when the statute's administrative enforcement scheme
imposes a requirement that before an agency may terminate Federal funds
the agency must give notice to ``an appropriate person'' with the
recipient who then may decide to voluntarily take corrective action to
remedy the violation.\115\ The Supreme Court reasoned that a ``central
purpose of requiring notice of the violation `to the appropriate
person' and an opportunity for voluntary compliance before
administrative enforcement proceedings can commence is to avoid
diverting education funding from beneficial uses where a recipient was
unaware of discrimination in its programs and is willing to institute
prompt corrective measures.'' \116\
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\109\ Davis, 526 U.S. at 642 (stating that actual knowledge
ensures that liability arises from ``an official decision by the
recipient not to remedy the violation'') (citing Gebser, 524 U.S. at
290) (internal quotation marks omitted).
\110\ Gebser, 524 U.S. at 287-88 (``If a school district's
liability for a teacher's sexual harassment rests on principles of
constructive notice or respondeat superior, it will likewise be the
case that the recipient of funds was unaware of the discrimination.
It is sensible to assume that Congress did not envision a
recipient's liability in damages in that situation.'').
\111\ Gebser, 524 U.S. at 292; Cannon, 441 U.S. at 704 (noting
that the primary congressional purposes behind Title IX were ``to
avoid the use of Federal resources to support discriminatory
practices'' and to ``provide individual citizens effective
protection against those practices.'').
\112\ E.g., Julie Davies, Assessing Institutional Responsibility
for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 402
(2002) (analyzing the Gebser/Davis framework and noting, ``The Court
concluded that a funding recipient's contract with the federal
government encompassed only a promise not to discriminate, not an
agreement to be held liable when employees discriminate.'').
\113\ Gebser, 524 U.S. at 286; Davis, 526 U.S. at 640.
\114\ Gebser, 524 U.S. at 290.
\115\ Id. at 289-90 (``Because the express remedial scheme under
Title IX is predicated upon notice to an `appropriate person' and an
opportunity to rectify any violation, 20 U.S.C. 1682, we conclude,
in the absence of further direction from Congress, that the implied
damages remedy should be fashioned along the same lines. An
`appropriate person' under Sec. 1682 is, at a minimum, an official
of the recipient entity with authority to take corrective action to
end the discrimination.'').
\116\ Id. at 289. The Court continued, ``When a teacher's sexual
harassment is imputed to a school district or when a school district
is deemed to have `constructively' known of the teacher's
harassment, by assumption the district had no actual knowledge of
the teacher's conduct. Nor, of course, did the district have an
opportunity to take action to end the harassment or to limit further
harassment.'' Id.
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The Supreme Court thus rejected theories of vicarious liability
(e.g., respondeat superior) and constructive notice as the basis for a
recipient's Title IX liability in private Title IX lawsuits.\117\ The
Supreme Court noted that the Department's 1997 Guidance held schools
responsible under vicarious liability and constructive notice
theories.\118\ Neither Gebser nor Davis indicated whether the
Department's administrative enforcement of Title IX should continue to
rely on vicarious liability and constructive notice as conditions
triggering a recipient's response obligations.
---------------------------------------------------------------------------
\117\ Id.; Davis, 526 U.S. at 650.
\118\ Gebser, 524 U.S. at 282 (plaintiffs in Gebser advocated
for private lawsuit liability based on vicarious liability and
constructive notice in part by looking at the Department's 1997
Guidance which relied on both theories).
---------------------------------------------------------------------------
These final regulations adopt the actual knowledge condition from
the Gebser/Davis framework so that these final regulations clearly
prohibit a recipient's own intentional discrimination,\119\ but adapt
the Gebser/Davis condition of actual knowledge to include notice to
more recipient employees than what is required under the Gebser/Davis
framework,\120\ in a way that takes into account the different needs
and expectations of students in elementary and secondary schools, and
in postsecondary institutions, with respect to sexual harassment and
sexual harassment allegations.\121\ These final regulations apply an
adapted condition of actual knowledge in ways that are similar to, and
different from, the Department's approach in guidance as to when notice
of sexual harassment triggers a recipient's response obligations. In
other words, we tailor the Supreme Court's condition of actual
knowledge to the unique context of administrative enforcement.
---------------------------------------------------------------------------
\119\ Section 106.30 (defining ``actual knowledge'' to include
notice to any recipient's officials with authority to institute
corrective measures on behalf of the recipient, thereby mirroring
the Gebser/Davis condition of actual knowledge).
\120\ Section 106.30 (defining ``actual knowledge'' to include
notice to any recipient's Title IX Coordinator, a position each
recipient must designate and authorize for the express purpose of
coordinating a recipient's compliance with Title IX obligations,
including specialized training for the Title IX Coordinator,
requirements not found in the Gebser/Davis framework); Sec.
106.8(a); Sec. 106.45(b)(1)(iii).
\121\ Section 106.30 (defining ``actual knowledge'' to include
notice to ``any employee'' in an elementary and secondary school, a
condition not found in the Gebser/Davis framework).
---------------------------------------------------------------------------
The Department's guidance used a ``responsible employees'' rubric
to describe the pool of employees to whom notice triggered the
recipient's response obligations. The ``responsible employees'' rubric
in guidance did not differentiate between elementary and secondary
schools, and postsecondary institutions. For all recipients, Department
guidance stated that a ``responsible employee'' was an employee who
``has the authority to take action to redress the harassment,'' or
``who has the duty to report to appropriate school officials sexual
harassment or any other misconduct by students or employees,'' or an
individual ``who a student could reasonably believe has this authority
or responsibility.'' \122\ Under the
[[Page 30039]]
responsible employees rubric in guidance, the recipient was liable when
a responsible employee ``knew,'' or when a responsible employee
``should have known,'' about possible harassment.\123\
---------------------------------------------------------------------------
\122\ 2001 Guidance at 13-14; 1997 Guidance (while not using the
same three-part definition of ``responsible employees'' as the 2001
Guidance, giving examples of a ``responsible employee'' to include
``a principal, campus security, bus driver, teacher, an affirmative
action officer, or staff in the office of student affairs''); 2011
Dear Colleague Letter at 4 (while not using the term ``responsible
employees,'' stating that a school must respond whenever it ``knows
or reasonably should know'' about sexual harassment); id. at 2
(stating that ``This letter supplements the 2001 Guidance by
providing additional guidance and practical examples regarding the
Title IX requirements as they relate to sexual violence'' thus
indicating that the 2011 Dear Colleague Letter did not alter the
2001 Guidance's approach to responsible employees); 2014 Q&A at 14
(``According to OCR's 2001 Guidance, a responsible employee includes
any employee: who has the authority to take action to redress sexual
violence; who has been given the duty of reporting incidents of
sexual violence or any other misconduct by students to the Title IX
coordinator or other appropriate school designee; or whom a student
could reasonably believe has this authority or duty.''); 2017 Q&A 1-
2 (citing to the 2001 Guidance for the proposition that a school
must respond whenever the school ``knows or reasonably should know''
of a sexual misconduct incident and that in addition to a Title IX
Coordinator other employees ``may be responsible employees'').
\123\ 1997 Guidance (a school is liable where it ``knows or
should have known''); 2001 Guidance at 13 (``A school has notice if
a responsible employee knew, or in the exercise of reasonable care
should have known, about the harassment.'') (internal quotation
marks omitted); 2011 Dear Colleague Letter at 4; 2014 Q&A at 2
(``OCR deems a school to have notice of student-on-student sexual
violence if a responsible employee knew, or in the exercise of
reasonable care should have known, about the sexual violence.'');
2017 Q&A at 1.
---------------------------------------------------------------------------
For reasons discussed below, these final regulations do not use the
``responsible employees'' rubric, although these final regulations
essentially retain the first of the three categories of the way
guidance described ``responsible employees.'' \124\ As discussed below,
these final regulations depart from the ``should have known'' condition
that guidance indicated would trigger a recipient's response
obligations.
---------------------------------------------------------------------------
\124\ The Sec. 106.30 definition of ``actual knowledge''
including notice to ``any official of the recipient who has
authority to institute corrective measures on behalf of the
recipient'' is the equivalent of the first portion of the definition
of ``responsible employees'' in Department guidance (e.g., 2001
Guidance at 13), that included any employee who ``has the authority
to take action to redress the harassment.'' See also Merle H.
Weiner, A Principled and Legal Approach to Title IX Reporting, 85
Tenn. L. Rev. 71, 140 (2017) (``The Supreme Court's definition of an
`appropriate person' '' as an `official who at a minimum has
authority to address the alleged discrimination and to institute
corrective measures' is ``very close to the first category [of
responsible employees] in OCR's guidance.'') (citing Gebser, 524
U.S. at 290).
---------------------------------------------------------------------------
Rather than using the phrase ``responsible employees,'' these final
regulations describe the pool of employees to whom notice triggers the
recipient's response obligations. That pool of employees is different
in elementary and secondary schools than in postsecondary institutions.
For all recipients, notice to the recipient's Title IX Coordinator or
to ``any official of the recipient who has authority to institute
corrective measures on behalf of the recipient'' (referred to herein as
``officials with authority'') conveys actual knowledge to the recipient
and triggers the recipient's response obligations. Determining whether
an individual is an ``official with authority'' is a legal
determination that depends on the specific facts relating to a
recipient's administrative structure and the roles and duties held by
officials in the recipient's own operations. The Supreme Court viewed
this category of officials as the equivalent of what 20 U.S.C. 1682
calls an ``appropriate person'' for purposes of the Department's
resolution of Title IX violations with a recipient.\125\ Lower Federal
courts applying the Gebser/Davis actual knowledge condition have
reached various results with respect to whether certain employees in an
elementary and secondary school, or in a postsecondary institution, are
officials with authority to whom notice conveys actual knowledge to the
recipient.\126\ Because these final regulations adopt the Gebser/Davis
condition describing a recipient's actual knowledge as resulting from
notice to an official with authority, but also include the recipient's
Title IX Coordinator and any elementary and secondary school employee,
the fact-specific nature of whether certain officials of the recipient
qualify as officials with authority does not present a barrier to
reporting sexual harassment and requiring schools, colleges, and
universities to respond promptly.
---------------------------------------------------------------------------
\125\ Gebser, 524 U.S. at 290 (``Because the express remedial
scheme under Title IX is predicated upon notice to an `appropriate
person' and an opportunity to rectify any violation, 20 U.S.C. 1682,
we conclude, in the absence of further direction from Congress, that
the implied damages remedy should be fashioned along the same lines.
An `appropriate person' under Sec. 1682 is, at a minimum, an
official of the recipient entity with authority to take corrective
action to end the discrimination.'').
\126\ With respect to elementary and secondary schools, see
Julie Davies, Assessing Institutional Responsibility for Sexual
Harassment in Education, 77 Tulane L. Rev. 387, 398, 424-26 (2002)
(reviewing cases decided under the Gebser/Davis framework and noting
that courts reached different results regarding teachers,
principals, school boards, and superintendents, and concluding that
``The legal authority of individuals to receive notice is clearly
relevant and a basis for their inclusion as parties to whom notice
may be given, but courts must also evaluate the factual reality.'')
With respect to postsecondary institutions, see Merle H. Weiner, A
Principled and Legal Approach to Title IX Reporting, 85 Tenn. L.
Rev. 71, 139 (2017) (``Overall, this category is rather narrow and
the identity of the relevant employees rests on an institution's own
policies regarding who has the authority to take action to redress
sexual violence.'').
---------------------------------------------------------------------------
Under these final regulations, in elementary and secondary schools,
notice to ``any employee'' (in addition to notice to the Title IX
Coordinator or to any official with authority) triggers the recipient's
response obligations, so there is no longer a need to use the
responsible employees rubric. Under these final regulations, an
elementary and secondary school must respond whenever any employee has
notice of sexual harassment or allegations of sexual harassment, so
there is no need to distinguish among employees who have ``authority to
redress the harassment,'' have the ``duty to report'' misconduct to
appropriate school officials, or employees who ``a student could
reasonably believe'' have that authority or duty.\127\ In the
elementary and secondary school setting where school administrators,
teachers, and other employees exercise a considerable degree of control
and supervision over their students, the Department believes that
requiring a school district to respond when its employees know of
sexual harassment (including reports or allegations of sexual
harassment) furthers Title IX's non-discrimination mandate in a manner
that best serves the needs and expectations of students.\128\ The
Department is persuaded by commenters who asserted that students in
elementary and secondary schools often talk about sexual harassment
experiences with someone other than their teacher, and that it is
unreasonable to expect young students to differentiate among employees
for the purpose of which employees' knowledge triggers the school's
response obligations and which do not. Elementary and secondary schools
generally operate under the doctrine of in loco parentis, under which
the school stands ``in the place of'' a parent with respect to certain
authority over, and responsibility for, its students.\129\ Further,
employees at
[[Page 30040]]
elementary and secondary schools typically are mandatory reporters of
child abuse under State laws for purposes of child protective
services.\130\ The Department is persuaded that employees at elementary
and secondary schools stand in a unique position with respect to
students and that a school district should be held accountable for
responding to sexual harassment under Title IX when the school
district's employees have notice of sexual harassment or sexual
harassment allegations.
---------------------------------------------------------------------------
\127\ See 2001 Guidance at 13.
\128\ Davis, 526 U.S. at 646 (noting that a public school's
power over its students is ``custodial and tutelary, permitting a
degree of supervision and control that could not be exercised over
free adults'') (citing Veronica Sch. Dist. v. Acton, 515 U.S. 646,
655 (1995)).
\129\ Todd A. Demitchell, The Duty to Protect: Blackstone's
Doctrine of In Loco Parentis: A Lens for Viewing the Sexual Abuse of
Students, 2002 BYU Educ. & L. J. 17, 19-20 (2002) (``Acting in the
place of parents is an accepted and expected role assumed by
educators and their schools. This doctrine has been recognized in
state statutes and court cases. For example, the United States
Supreme Court noted that there exists an `obvious concern on the
part of parents, and school authorities acting in loco parentis, to
protect children--especially in a captive audience--from exposure to
sexually explicit, indecent, or lewd speech. [Citing to Bethel Sch.
Dist. No. 403 v. Fraser ex rel. Fraser, 478 U.S. 675, 684 (1986).]
According to the Supreme Court, school officials have authority over
students by virtue of in loco parentis and a concomitant duty of
protection. It has been asserted that in loco parentis is a sub-set
of government's broad common law power of parens patriae.'')
(internal citations omitted).
\130\ See Ala. Code Sec. 26-14-3; Alaska Stat. Sec. 47.17.020;
Ariz. Rev. Stat. Sec. 13-3620; Ark. Code Ann. Sec. 12-18-402; Cal.
Penal Code Sec. 11165.7; Colo. Rev. Stat. Sec. 19-3-304; Conn.
Gen. Stat. Sec. 17a-101; Del. Code Ann. tit. 16, Sec. 903; DC Code
Sec. 4-1321.02; Fla. Stat. Sec. 39.201; Ga. Code Ann. Sec. 19-7-
5; Haw. Rev. Stat. Sec. 350-1.1; Idaho Code Ann. Sec. 16-1605; 325
Ill. Comp. Stat. Sec. 5/4; Ind. Code Sec. 31-33-5-1; Iowa Code
Sec. 232.69; Kan. Stat. Ann. Sec. 38-2223; Ky. Rev. Stat. Ann.
Sec. 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit.
22, Sec. 4011-A; Md. Code Ann., Fam. Law Sec. 5-704; Mass. Gen.
Laws ch. 119, Sec. 21; Mich. Comp. Laws Sec. 722.623; Minn. Stat.
Sec. 626.556; Miss. Code. Ann. Sec. 43-21-353; Mo. Ann Stat. Sec.
210.115; Mont. Code Ann. Sec. 41-3-201; Neb. Rev. Stat. Sec. 28-
711; Nev. Rev. Stat. Sec. 432B.220; N.H. Rev. Stat. Ann. Sec. 169-
C:29; N.J. Stat. Ann. Sec. 9:6-8.10; N.M. Stat. Ann. Sec. 32A-4-3;
N.Y. Soc. Serv. Law Sec. 413; N.C. Gen. Stat. Ann. Sec. 7B-301;
N.D. Cent. Code Ann. Sec. 50-25.1-03; Ohio Rev. Code Ann. Sec.
2151.421; Okla. Stat. tit. 10A, Sec. 1-2-101; Or. Rev. Stat. Sec.
419B.010; 23 Pa. Cons. Stat. Ann Sec. 6311; R.I. Gen. Laws Sec.
40-11-3(a); S.C. Code Ann. Sec. 63-7-310; S.D. Codified Laws Sec.
26-8A-3; Tenn. Code Ann. Sec. 37-1-403; Tex. Fam. Code Sec.
261.101; Utah Code Ann. Sec. 62A-4a-403; Vt. Stat. Ann. tit. 33,
Sec. 4913; Va. Code Ann. Sec. 63.2-1509; Wash. Rev. Code Sec.
26.44.030; W. Va. Code Sec. 49-2-803; Wis. Stat. Sec. 48.981; Wyo.
Stat. Ann. Sec. 14-3-205.
---------------------------------------------------------------------------
In postsecondary institutions, where in loco parentis does not
apply,\131\ notice to the Title IX Coordinator or any official with
authority conveys actual knowledge to the recipient. Triggering a
recipient's response obligations only when the Title IX Coordinator or
an official with authority has notice respects the autonomy of a
complainant in a postsecondary institution better than the responsible
employee rubric in guidance. As discussed below, the approach in these
final regulations allows postsecondary institutions to decide which of
their employees must, may, or must only with a student's consent,
report sexual harassment to the recipient's Title IX Coordinator (a
report to whom always triggers the recipient's response obligations, no
matter who makes the report). Postsecondary institutions ultimately
decide which officials to authorize to institute corrective measures on
behalf of the recipient. The Title IX Coordinator and officials with
authority to institute corrective measures on behalf of the recipient
fall into the same category as employees whom guidance described as
having ``authority to redress the sexual harassment.'' \132\ In this
manner, in the postsecondary institution context these final
regulations continue to use one of the three categories of
``responsible employees'' described in guidance.
---------------------------------------------------------------------------
\131\ E.g., Wagner v. Holtzapple, 101 F. Supp. 3d 462, 472-73
(M.D. Penn. 2015) (noting that ``the law surrounding the student-
university relationship has changed considerably in a relatively
short period of time. `The early period of American higher
education, prior to the 1960s, was exclusively associated with the
doctrine of in loco parentis.' '') (citing to Jason A. Zwara,
Student Privacy, Campus Safety, and Reconsidering the Modern
Student-University Relationship, 38 Journal of Coll. & Univ. L. 419,
432-33, 436 (2012) (``In loco parentis was applied in the early
period of higher education law to prevent courts or legislatures
from intervening in the student-university relationship, thus
insulating the institution from criminal or civil liability or
regulation . . . . Courts began to shift away from in loco parentis
beginning in the civil rights era of the 1960s through a number of
cases addressing student claims for constitutional rights, in
particular due process rights and free speech'' and courts now
generally view the student-university relationship as one governed
by contract) (internal quotation marks and citations omitted)).
\132\ The Sec. 106.30 definition of ``actual knowledge'' as
including notice to ``any official of the recipient who has
authority to institute corrective measures on behalf of the
recipient'' is the equivalent of the portion of the definition of
``responsible employees'' in Department guidance (e.g., 2001
Guidance at 13) that included any employee who ``has the authority
to take action to redress the harassment.'' See also Merle H.
Weiner, A Principled and Legal Approach to Title IX Reporting, 85
Tenn. L. Rev. 71, 140 (2017) (``The Supreme Court's definition of an
`appropriate person''' as an `official who at a minimum has
authority to address the alleged discrimination and to institute
corrective measures' is ``very close to the first category [of
responsible employees] in OCR's guidance.'') (citing Gebser, 524
U.S. at 290).
---------------------------------------------------------------------------
With respect to postsecondary institutions, these final regulations
depart from using the other two categories of ``responsible employees''
described in guidance (those who have a ``duty to report'' misconduct,
and those whom a ``student could reasonably believe'' have the
requisite authority or duty). As discussed below, in the postsecondary
institution context, requiring the latter two categories of employees
to be mandatory reporters (as Department guidance has) may have
resulted in college and university policies that have unintentionally
discouraged disclosures or reports of sexual harassment by leaving
complainants with too few options for disclosing sexual harassment to
an employee without automatically triggering a recipient's response.
Elementary and secondary school students cannot be expected to
distinguish among employees to whom disclosing sexual harassment
results in a mandatory school response, but students at postsecondary
institutions may benefit from having options to disclose sexual
harassment to college and university employees who may keep the
disclosure confidential. These final regulations ensure that all
students and employees are notified of the contact information for the
Title IX Coordinator and how to report sexual harassment for purposes
of triggering a recipient's response obligations, and the Department
believes that students at postsecondary institutions benefit from
retaining control over whether, and when, the complainant wants the
recipient to respond to the sexual harassment that the complainant
experienced.
In both the elementary and secondary school context and the
postsecondary institution context, the final regulations use the same
broad conception of what might constitute ``notice'' as the
Department's guidance used. Notice results whenever any elementary and
secondary school employee, any Title IX Coordinator, or any official
with authority: Witnesses sexual harassment; hears about sexual
harassment or sexual harassment allegations from a complainant (i.e., a
person alleged to be the victim) or a third party (e.g., the
complainant's parent, friend, or peer); receives a written or verbal
complaint about sexual harassment or sexual harassment allegations; or
by any other means.\133\ These final regulations emphasize that any
person may always trigger a recipient's response obligations by
reporting sexual harassment to the Title IX Coordinator using contact
information that the recipient must post on the recipient's
website.\134\ The person who reports does not need to be the
complainant (i.e., the person alleged to be the victim); a report may
be made by ``any person'' \135\ who believes that sexual harassment may
have occurred and requires a recipient's response.
---------------------------------------------------------------------------
\133\ E.g., 2001 Guidance at 13.
\134\ Section 106.30 (defining ``actual knowledge'' to mean
notice, where ``notice'' includes but is not limited to a report to
the Title IX Coordinator as described in Sec. 106.8(a)); Sec.
106.8(b) (requiring the Title IX Coordinator's contact information
to be displayed prominently on the recipient's website); Sec.
106.8(a) (stating that any person may report sexual harassment
(whether or not the person reporting is the person alleged to be the
victim) using the contact information listed for the Title IX
Coordinator or any other means that results in the Title IX
Coordinator receiving the person's verbal or written report, and
that a report may be made at any time, including during non-business
hours, by using the listed telephone number or email address, or by
mail to the listed office address, for the Title IX Coordinator).
\135\ Section 106.8(a) (specifying that ``any person may
report'' sexual harassment).
---------------------------------------------------------------------------
The final regulations depart from the constructive notice condition
described in Department guidance that stated that
[[Page 30041]]
a recipient must respond if a recipient's responsible employees
``should have known'' about sexual harassment. The Department's
guidance gave only the following examples of circumstances under which
a recipient ``should have known'' about sexual harassment: When ``known
incidents should have triggered an investigation that would have led to
discovery of [ ] additional incidents,'' or when ``the pervasiveness''
of the harassment leads to the conclusion that the recipient ``should
have known'' of a hostile environment.\136\
---------------------------------------------------------------------------
\136\ 2001 Guidance at 13-14 (``[A] school has a duty to respond
to harassment about which it reasonably should have known, i.e., if
it would have learned of the harassment if it had exercised
reasonable care or made a reasonably diligent inquiry. For example,
in some situations if the school knows of incidents of harassment,
the exercise of reasonable care should trigger an investigation that
would lead to a discovery of additional incidents. In other cases,
the pervasiveness of the harassment may be enough to conclude that
the school should have known of the hostile environment--if the
harassment is widespread, openly practiced, or well-known to
students and staff (such as sexual harassment occurring in the
hallways, graffiti in public areas, or harassment occurring during
recess under a teacher's supervision.'') (internal citations
omitted); 1997 Guidance (same); 2014 Q&A at 2 (same). The 2011 Dear
Colleague Letter at 1-2, and the 2017 Q&A at 1, did not describe the
circumstances under which a school ``should have known'' but
referenced the 2001 Guidance on this topic.
---------------------------------------------------------------------------
The Department has reconsidered the position that a recipient's
response obligations are triggered whenever employees ``should have
known'' because known incidents ``should have triggered an
investigation that would have led to discovery'' of additional
incidents.\137\ The final regulations impose clear obligations as to
when a recipient must investigate allegations. Unlike the Department's
guidance, which did not specify the circumstances under which a
recipient must investigate and adjudicate sexual harassment
allegations, the final regulations clearly obligate a recipient to
investigate and adjudicate whenever a complainant files, or a Title IX
Coordinator signs, a formal complaint.\138\ The Department will hold
recipients responsible for a recipient's failure or refusal to
investigate a formal complaint.\139\ However, the Department does not
believe it is feasible or necessary to speculate on what an
investigation ``would have'' revealed if the investigation had been
conducted. Even if there are additional incidents of which a recipient
``would have'' known had the recipient conducted an investigation into
a known incident, each of the additional incidents involve complainants
who also have the clear option and right under these final regulations
to file a formal complaint that requires the recipient to investigate,
or to report the sexual harassment and trigger the recipient's
obligation to respond by offering supportive measures (and explaining
to the complainant the option of filing a formal complaint).\140\ If a
recipient fails to meet its Title IX obligations with respect to any
complainant, the Department will hold the recipient liable under these
final regulations, and doing so does not necessitate speculating about
what an investigation ``would have'' revealed.
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\137\ 2001 Guidance at 13.
\138\ Section 106.44(b)(1) (stating a recipient must investigate
in response to a formal complaint); Sec. 106.30 (defining ``formal
complaint'' as a written document filed by a complainant or signed
by a Title IX Coordinator requesting that the recipient investigate
allegations of sexual harassment against a respondent, where
``document filed by a complainant'' also includes an electronic
submission such as an email or use of an online portal if the
recipient provides one for filing formal complaints).
\139\ Section 106.44(b)(1).
\140\ Section 106.8(a) (stating any person may report sexual
harassment using the Title IX Coordinator's listed contact
information); Sec. 106.8(b) (stating recipients must prominently
display the Title IX Coordinator's contact information on their
websites); Sec. 106.44(a) (stating recipients must respond promptly
to actual knowledge of sexual harassment by, among other things,
offering supportive measures to the complainant regardless of
whether a formal complaint is filed, and by explaining to the
complainant the process for filing a formal complaint).
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The Department has reconsidered the position that a recipient's
response obligations are triggered whenever employees ``should have
known'' due to the ``pervasiveness'' of sexual harassment.\141\ In
elementary and secondary schools, the final regulations charge a
recipient with actual knowledge whenever any employee has notice. Thus,
if sexual harassment is ``so pervasive'' that some employee ``should
have known'' about it (e.g., sexualized graffiti scrawled across
lockers that meets the definition of sexual harassment in Sec.
106.30), it is highly likely that at least one employee did know about
it and the school is charged with actual knowledge. There is no reason
to retain a separate ``should have known'' standard to cover situations
that are ``so pervasive'' in elementary and secondary schools. In
postsecondary institutions, when sexual harassment is ``so pervasive''
that some employees ``should have known'' it is highly likely that at
least one employee did know about it. However, in postsecondary
institutions, for reasons discussed below, the Department believes that
complainants will be better served by allowing the postsecondary
institution recipient to craft and apply the recipient's own policy
with respect to which employees must, may, or must only with a
complainant's consent, report sexual harassment and sexual harassment
allegations to the Title IX Coordinator. With respect to whether a
Title IX Coordinator or official with authority in a postsecondary
institution ``should have known'' of sexual harassment, the Department
believes that imposing a ``should have known'' standard unintentionally
creates a negative incentive for Title IX Coordinators and officials
with authority to inquire about possible sexual harassment in ways that
invade the privacy and autonomy of students and employees at
postsecondary institutions, and such a negative consequence is not
necessary because the final regulations provide every student,
employee, and third party with clear, accessible channels for reporting
to the Title IX Coordinator,\142\ which gives the Title IX Coordinator
notice and triggers the recipients' response obligations,\143\ without
the need to require Title IX Coordinators and officials with authority
to potentially invade student and employee privacy or autonomy.\144\
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\141\ 2001 Guidance at 13-14.
\142\ Section 106.8(a) (requiring every recipient to list the
office address, telephone number, and email address for the Title IX
Coordinator and stating that any person may report sexual harassment
by using the listed contact information, and that a report may be
made at any time (including during non-business hours) by using the
telephone number or email address, or by mail to the office address,
listed for the Title IX Coordinator); Sec. 106.8(b) (requiring
recipients to list the Title IX Coordinator's contact information on
recipient websites).
\143\ Section 106.30 (defining ``actual knowledge'' to mean
notice to the Title IX Coordinator and stating that ``notice''
includes but is not limited to a report to the Title IX Coordinator
as described in Sec. 106.8(a)).
\144\ The 2014 Q&A acknowledged one of the drawbacks of a
condition that triggers a postsecondary institution's response
obligations whenever a Title IX Coordinator or official with
authority ``should have known'' about a student's disclosure of
sexual harassment: Under such a condition, whenever the Title IX
Coordinator or other officials with authority know about public
awareness events (such as ``Take Back the Night'' events) where
survivors are encouraged to safely talk about their sexual assault
experiences, those recipient officials would be obligated to (a)
attend such events and (b) respond to any sexual harassment
disclosed at such an event by contacting each survivor, offering
them supportive measures, documenting the institution's response to
the disclosure, and all other recipient's response obligations,
including an investigation. 2014 Q&A at 24. Failure to do so would
be avoiding having learned about campus sexual assault incidents
that could have been discovered with due diligence (i.e., the Title
IX Coordinator and other university officials ``should have known''
about the experiences disclosed by survivors at such events). Id.
Understanding the drawbacks of this kind of rule, the 2014 Q&A
carved out an exception, but without explaining how or why the
exception would apply only to ``public awareness events'' and not,
for example, also extend to Title IX Coordinators and other
postsecondary institution officials with authority needing to
inquire into students' (and employees') private affairs whenever
there was any indication that a student or employee may be suffering
the impact of sexual harassment. Id. (``OCR wants students to feel
free to participate in preventive education programs and access
resources for survivors. Therefore, public awareness events such as
`Take Back the Night' or other forums at which students disclose
experiences with sexual violence are not considered notice to the
school for the purpose of triggering an individual investigation
unless the survivor initiates a complaint.'').
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[[Page 30042]]
The Department's guidance did not use the term ``mandatory
reporters'' but the 2001 Guidance expected responsible employees to
report sexual harassment to ``appropriate school officials'' \145\ and
the withdrawn 2014 Q&A specified that responsible employees must report
to the Title IX Coordinator.\146\ As of 2017 many (if not most)
postsecondary institutions had policies designating nearly all their
employees as ``responsible employees'' and ``mandatory reporters.''
\147\ The ``explosion'' in postsecondary institution policies making
nearly all employees mandatory reporters (sometimes referred to as
``wide-net'' or universal mandatory reporting) was due in part to the
broad, vague way that ``responsible employees'' were defined in
Department guidance.\148\ The extent to which a wide-net or universal
mandatory reporting system for employees in postsecondary institutions
is beneficial, or detrimental, to complainants, is difficult to
determine,\149\ and research (to date) is inconclusive.\150\ What
research does demonstrate is that respecting an alleged victim's
autonomy,\151\ giving alleged victims control over how official systems
respond to an alleged victim,\152\
[[Page 30043]]
and offering clear options to alleged victims \153\ are critical
aspects of helping an alleged victim recover from sexual harassment.
Unsupportive institutional responses increase the effects of trauma on
complainants,\154\ and institutional betrayal may occur when an
institution's mandatory reporting policies require a complainant's
intended private conversation about sexual assault to result in a
report to the Title IX Coordinator.\155\
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\145\ 2001 Guidance at 13.
\146\ 2014 Q&A at 14; cf. id. at 22 (exempting responsible
employees who have counseling roles from being obligated to report
sexual harassment to the Title IX Coordinator in a way that
identifies the student).
\147\ Merle H. Weiner, A Principled and Legal Approach to Title
IX Reporting, 85 Tenn. L. Rev. 71, 77-78 (2017) (``Today the
overwhelming majority of institutions of higher education designate
virtually all of their employees as responsible employees and exempt
only a small number of `confidential' employees. Kathryn Holland,
Lilia Cortina, and Jennifer Freyd recently examined reporting
policies at 150 campuses and found that policies at 69 percent of
the institutions made all employees mandatory reporters, policies at
19 percent of the institutions designated nearly all employees as
mandatory reporters, and only 4 percent of institutional policies
named a limited list of reporters. The authors concluded, `[T]hese
findings suggest that the great majority of U.S. colleges and
universities--regardless of size or public vs. private nature--have
developed policies designating most if not all employees (including
faculty, staff, and student employees) as mandatory reporters of
sexual assault.' At some institutions, these reporting obligations
have even been incorporated into employees' contracts.'') (citing an
``accepted for publication'' version of Kathryn Holland et al.,
Compelled disclosure of college sexual assault, 73 Am. Psychologist
3, 256 (2018)).
\148\ Merle H. Weiner, A Principled and Legal Approach to Title
IX Reporting, 85 Tenn. L. Rev. 71, 79-80 (2017) (analyzing the
``explosion'' of universal or near-universal mandatory reporting
policies, which the author calls ``wide-net reporting policies'' and
finding a root of that trend in Department guidance: ``The question
was raised whether this language [in Department guidance] meant all
employees had to be made responsible employees. For example, John
Gaal and Laura Harshbarger, writing in the Higher Education Law
Report asked, `And does OCR really mean that any employee who has
any `misconduct' reporting duty is a `responsible employee' ? . . .
We simply do not know.' Administrators started concluding,
erroneously, that any employee who has an obligation to report any
other misconduct at the institution must be labeled a responsible
employee. Several OCR resolution letters issued at the end of 2016
bolstered this broad interpretation.'') (internal citations omitted;
ellipses in original).
\149\ Merle H. Weiner, A Principled and Legal Approach to Title
IX Reporting, 85 Tenn. L. Rev. 71, 82-83 (2017) (stating
institutions with ``wide-net reporting policies'' defend such
policies by ``claiming that they are best for survivors'' for
reasons such as enabling institutions to ``identify victims in order
to offer them resources and support'' and allowing institutions ``to
collect data on the prevalence of sexual assault and to ensure that
perpetrators are identified and disciplined.'') (internal citations
omitted); cf. id. at 83-84 (stating institutional justifications
``make wide-net reporting policies appear consistent with the spirit
of Title IX, insofar as they seem consistent with institutional
commitments to reduce campus sexual violence . . . . Even if wide-
net policies were once thought beneficial to help break a culture of
silence around sexual violence in the university setting, the
utilitarian calculus has now changed and these policies do more harm
than good.'') (internal citations omitted); id. at 84 (summarizing
the ``harm survivors experience when they are involuntarily thrust
into a system designed to address their victimization'' and arguing
that ``wide-net'' mandatory reporting policies ``undermine
[survivors'] autonomy and sense of institutional support,
aggravating survivors' psychological and physical harm. These
effects can impede survivors' healing, directly undermining Title
IX's objective of ensuring equal access to educational opportunities
and benefits regardless of gender. In addition, . . . because of the
negative consequences of reporting, wide-net reporting policies
discourage students from talking to any faculty or staff on campus.
Fewer disclosures result in fewer survivors being connected to
services and fewer offenders being held accountable for their acts.
Holding perpetrators accountable is critical for creating a climate
that deters acts of violence. Because wide-net policies chill
reporting, these policies violate the spirit of Title IX.'')
(internal citations omitted).
\150\ Merle H. Weiner, A Principled and Legal Approach to Title
IX Reporting, 85 Tenn. L. Rev. 71, 78-79 (2017) (``The number of
institutions with broad policies, sometimes known as universal
mandatory reporting or required reporting, and hereafter called
`wide-net' reporting policies, has grown over time. Approximately
fifteen years ago, in 2002, only 45 percent of schools identified
some mandatory reporters on their campuses, and these schools did
not necessarily categorize almost every employee in that manner. The
trend since then is notable, particularly because it contravenes the
advice from a [study published in 2002 using funds provided by the
National Institute of Justice, Heather M. Karjane et al., Campus
Sexual Assault: How America's Institutions of Higher Education
Respond 120, Final Report, NIJ Grant #1999-WA-VX-0008 (Education
Development Center, Inc. 2002)]. The authors of that study suggested
that wide-net reporting policies were unwise. After examining almost
2,500 institutions of higher education, they warned: `Any policy or
procedure that compromises, or worse, eliminates the student
victim's ability to make her or his own informed choices about
proceeding through the reporting and adjudication process--such as
mandatory reporting requirements that do not include an anonymous
reporting option or require the victim to participate in the
adjudication process if the report is filed--not only reduces
reporting rates but may be counterproductive to the victim's healing
process.''') (internal citations omitted); id. at 102 (concluding
that wide-net reporting policies ``clearly inhibit the willingness
of some students to talk to a university employee about an unwanted
sexual experience. This effect is not surprising in light of studies
on the effect of mandatory reporting in other contexts. Studies
document that women sometimes refuse to seek medical care when their
doctors are mandatory reporters, or forego calling the police when a
state has a mandatory arrest law.'') (internal citations omitted);
id. at 104-05 (citing to ``conflicting research'' about whether
college and university mandatory reporting policies chill reporting,
concluding that available research has not empirically demonstrated
the alleged benefits of mandatory reporting policies in colleges and
universities, and arguing that without further research, colleges
and universities should carefully design reporting policies that
``can accommodate both the students who would be more inclined and
less inclined to report with a mandatory reporting policy.'')
(internal citations omitted).
\151\ Margaret Garvin & Douglas E. Beloof, Crime Victim Agency:
Independent Lawyers for Sexual Assault Victims, 13 Ohio St. J. of
Crim. Law 67, 69-70 (2015) (explaining that ``autonomy'' has come to
mean ``the capacity of an individual for self-governance combined
with the actual condition of self-governance in an absolute state of
freedom to choose unconstrained by external influence'' and the
related concept of ``agency'' has emerged to mean ``self-
definition'' (``fundamental determination of how one conceives of
oneself both as an individual and as a community member'') and
``self-direction'' (``the charting of one's direction in life''))
(internal citations omitted); id. at 71-72 (agency ``is critically
important for crime victims. Research reveals that for some victims
who interact with the criminal justice system, participation is
beneficial. It can allow them to experience improvement in
depression and quality of life, provide a sense of safety and
protection, and validate the harm done by the offender. For other
victims, interaction with the criminal justice system leads to a
harm beyond that of the original crime, a harm that is often
referred to as `secondary victimization' and which is recognized to
have significant negative impacts on victims. . . . A significant
part of what accounts for the difference in experience is whether
victims have the ability to meaningfully choose whether, when, how,
and to what extent to meaningfully participate in the system and
exercise their rights. In short, the difference in experience is
explained by the existence--or lack of--agency.'') (internal
citations omitted).
\152\ E.g., Patricia A. Frazier et al., Coping Strategies as
Mediators of the Relations Among Perceived Control and Distress in
Sexual Assault Survivors, 52 Journal of Counseling Psychol. 3 (2005)
(control over the recovery process was associated with less
emotional distress for sexual assault victims, partly because that
kind of ``present control'' was associated with less social
withdrawal and more cognitive restructuring.); Ryan M. Walsh &
Steven E. Bruce, The Relationships Between Perceived Levels of
Control, Psychological Distress, and Legal System Variables in a
Sample of Sexual Assault Survivors, 17 Violence Against Women 603,
611 (2011) (finding that ``a perception by victims that they are in
control of their recovery process'' is an ``important factor''
reducing post-traumatic stress and depression).
\153\ E.g., Nancy Chi Cantalupo, For the Title IX Civil Rights
Movement: Congratulations and Cautions, 125 Yale J. of L. &
Feminism. 281, 291 (2016) (arguing against State law proposals that
would require mandatory referral to law enforcement of campus sexual
assault incidents in part because such laws would limit ``the number
and diversity of reporting options that victims can use''); Merle H.
Weiner, A Principled and Legal Approach to Title IX Reporting, 85
Tenn. L. Rev. 71, 117 (2017) (``Schools expose survivors to harm
when they turn a disclosure into either an involuntary report to law
enforcement or an involuntary report to the Title IX office.'').
\154\ Lindsey L. Monteith et al., Perceptions of Institutional
Betrayal Predict Suicidal Self-Directed Violence Among Veterans
Exposed to Military Sexual Trauma, 72 J. of Clinical Psychol. 743,
750 (2016); see also Rebecca Campbell et al., An Ecological Model of
the Impact of Sexual Assault on Women's Mental Health, 10 Trauma,
Violence & Abuse 225, 234 (2009) (survivors of sexual violence
already feel powerless, and policies that increase a survivor's lack
of power over their situation contribute to the trauma they have
already experienced).
\155\ Merle H. Weiner, Legal Counsel for Survivors of Campus
Sexual Violence, 29 Yale J. of L. & Feminism 123, 140-141 (2017)
(identifying one type of institutional betrayal as the harm that
occurs when ``the survivor thinks she is speaking to a confidential
resource, but then finds out the advocate cannot keep their
conversations private''); Michael A. Rodriguez, Mandatory Reporting
Does Not Guarantee Safety, 173 W. J. of Med. 225, 225 (2000)
(mandatory reporting by doctors of patient intimate partner abuse
may negatively impact victims by making them less likely to seek
medical care and compromising the patient's autonomy).
---------------------------------------------------------------------------
Throughout these final regulations the Department aims to respect
the autonomy of complainants and to recognize the importance of a
complainant retaining as much control as possible over their own
circumstances following a sexual harassment experience, while also
ensuring that complainants have clear information about how to access
the supportive measures a recipient has available (and how to file a
formal complaint initiating a grievance process against a respondent if
the complainant chooses to do so) if and when the complainant desires
for a recipient to respond to the complainant's situation.\156\ The
Department recognizes the complexity involved in determining best
practices with respect to which employees of postsecondary institutions
should be mandatory reporters versus which employees of postsecondary
institutions should remain resources in whom students may confide
without automatically triggering a report of the student's sexual
harassment situation to the Title IX Coordinator or other college or
university officials.\157\
---------------------------------------------------------------------------
\156\ Section 106.44(a) (describing a recipient's general
response obligations).
\157\ E.g., Merle H. Weiner, A Principled and Legal Approach to
Title IX Reporting, 85 Tenn. L. Rev. 71, 188 (2017) (``The
classification of employees as [mandatory] reporters should include
those who students expect to have the authority to redress the
violence or the obligation to report it, and should exclude those
who students turn to for support instead of for reporting. Faculty
should not be designated reporters, but high-level administrators
should be. Schools should carefully consider how to classify
employees who are resident assistants, campus police, coaches,
campus security authorities, and employment supervisors. A well-
crafted policy will be the product of thoughtful conversations about
online reporting, anonymous reporting, third-party reports, and
necessary exceptions for situations involving minors and imminent
risks of serious harm.'').
---------------------------------------------------------------------------
Through the actual knowledge condition as defined and applied in
these final regulations, the Department intends to ensure that every
complainant in a postsecondary institution knows that if or when the
complainant desires for the recipient to respond to a sexual harassment
experience (by offering supportive measures, by investigating
allegations, or both), the complainant has clear, accessible channels
by which to report and/or file a formal complaint.\158\ The Department
also intends to leave postsecondary institutions wide discretion to
craft and implement the recipient's own employee reporting policy to
decide (as to employees who are not the Title IX Coordinator and not
officials with authority) which employees are mandatory reporters
(i.e., employees who must report sexual harassment to the Title IX
Coordinator), which employees may listen to a student's or employee's
disclosure of sexual harassment without being required to report it to
the Title IX Coordinator, and/or which employees must report sexual
harassment to the Title IX Coordinator but only with the complainant's
consent. No matter how a college or university designates its employees
with respect to mandatory reporting to the Title IX Coordinator, the
final regulations ensure that students at postsecondary institutions,
as well as employees, are notified of the Title IX Coordinator's
contact information and have clear reporting channels, including
options accessible even during non-business hours,\159\ for reporting
sexual harassment in order to trigger the postsecondary institution's
response obligations.
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\158\ Section 106.8(a) (requiring recipients to notify students,
employees, and others of the contact information for their Title IX
Coordinators and stating that any person may report sexual
harassment by using that contact information, and that reports can
be made during non-business hours by mail to the listed office
address or by using the listed telephone number or email address);
Sec. 106.8(b) (requiring a recipient to post the Title IX
Coordinator's contact information on the recipient's website); Sec.
106.30 (defining ``formal complaint'' and providing that any
complainant may file a formal complaint by using the email address,
or by mail to the office address, listed for the Title IX
Coordinator, or by any additional method designated by the
recipient).
\159\ Section 106.8 (stating that a report of sexual harassment
may be made at any time, including during non-business hours, by
using the telephone number or email address, or by mail to the
office address, listed for the Title IX Coordinator, and requiring
recipients to prominently display the Title IX Coordinator's contact
information on the recipient's website).
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As to all recipients, these final regulations provide that the mere
ability or obligation to report sexual harassment or to inform a
student about how to report sexual harassment, or having been trained
to do so, does not qualify an individual (such as a volunteer parent,
or alumnus) as an official with authority to institute corrective
measures on behalf of the recipient.\160\ The Department does not wish
to discourage recipients from training individuals who interact with
the recipient's students about how to report sexual harassment,
including informing students about how to report sexual harassment.
Accordingly, the Department will not assume that a person is an
official with authority solely based on the fact that the person has
received training on how to report sexual harassment or has the ability
or obligation to report sexual harassment. Similarly, the Department
will not conclude that volunteers and independent contractors are
officials with authority, unless the recipient has granted the
volunteers or independent contractors authority to institute corrective
measures on behalf of the recipient.
---------------------------------------------------------------------------
\160\ Section 106.30 (defining ``actual knowledge'').
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Deliberate Indifference
Once a recipient is charged with actual knowledge of sexual
harassment in its education program or activity, it becomes necessary
to evaluate the recipient's response. Although the Department is not
required to adopt the deliberate indifference standard articulated in
the Gebser/Davis framework, we believe that deliberate indifference,
with adaptions for administrative enforcement, constitutes the best
policy approach to further Title IX's non-discrimination mandate.
As the Supreme Court explained in Davis, a recipient acts with
deliberate indifference only when it responds to
[[Page 30044]]
sexual harassment in a manner that is ``clearly unreasonable in light
of the known circumstances'' \161\ because for a recipient with actual
knowledge to respond in a clearly unreasonable manner constitutes the
recipient committing intentional discrimination.\162\ The deliberate
indifference standard under the Gebser/Davis framework is the starting
point under these final regulations, so that the Department's
regulations clearly prohibit instances when the recipient chooses to
permit discrimination. The Department tailors this standard for
administrative enforcement, to hold recipients accountable for
responding meaningfully every time the recipient has actual knowledge
of sexual harassment through a general obligation to not act clearly
unreasonably in light of the known circumstances, and specific
obligations that each recipient must meet as part of its response to
sexual harassment.
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\161\ Davis, 526 U.S. at 648-49.
\162\ Gebser, 524 U.S. at 290 (deliberate indifference ensures
that the recipient is liable for ``its own official decision'' to
permit discrimination).
---------------------------------------------------------------------------
Based on consideration of the text and purpose of Title IX, the
reasoning underlying the Supreme Court's decisions in Gebser and Davis,
and more than 124,000 public comments on the proposed regulations, the
Department adopts, but adapts, the deliberate indifference standard in
a manner that imposes mandatory, specific obligations on recipients
that are not required under the Gebser/Davis framework. The Department
developed these requirements in response to commenters' concerns that
the standard of deliberate indifference gives recipients too much
leeway in responding to sexual harassment, and in response to
commenters who requested greater clarity about how the Department will
apply the deliberate indifference standard.
The Department revises Sec. 106.44(a) to specify that a
recipient's response: must be prompt; must consist of offering
supportive measures to a complainant; \163\ must ensure that the Title
IX Coordinator contacts each complainant (i.e., person who is alleged
to be the victim of sexual harassment) to discuss supportive measures,
consider the complainant's wishes regarding supportive measures, inform
the complainant of the availability of supportive measures with or
without the filing of a formal complaint, and explain to the
complainant the process for filing a formal complaint. This mandatory,
proactive, and interactive process helps ensure that complainants
receive the response that will most effectively address the
complainant's needs in each circumstance. Additionally, revised Sec.
106.44(a) specifies that the recipient's response must treat
complainants and respondents equitably, meaning that for a complainant,
the recipient must offer supportive measures, and for a respondent, the
recipient must follow a grievance process that complies with Sec.
106.45 before imposing disciplinary sanctions. If a respondent is found
to be responsible for sexual harassment, the recipient must effectively
implement remedies for the complainant, designed to restore or preserve
the complainant's equal educational access, and may impose disciplinary
sanctions on the respondent.\164\ These final regulations thus hold
recipients accountable for responses to sexual harassment designed to
protect complainants' equal educational access, and provide due process
protections to both parties before restricting a respondent's
educational access. By using a deliberate indifference standard to
evaluate a recipient's selection of supportive measures and remedies,
and refraining from second guessing a recipient's disciplinary
decisions, these final regulations leave recipients legitimate and
necessary flexibility to make decisions regarding the supportive
measures, remedies, and discipline that best address each sexual
harassment incident. Sexual harassment allegations present context-
driven, fact-specific, needs and concerns for each complainant, and
like the Supreme Court, the Department believes that recipients have
unique knowledge of their own educational environment and student body,
and are best positioned to make decisions about which supportive
measures and remedies meet each complainant's need to restore or
preserve the right to equal access to education, and which disciplinary
sanctions are appropriate against a respondent who is found responsible
for sexual harassment.
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\163\ Under Sec. 106.44(a) the recipient must respond in a
manner that is not clearly unreasonable in light of the known
circumstances, and under Sec. 106.30 defining ``supportive
measures,'' the Title IX Coordinator is responsible for the
effective implementation of supportive measures. Thus, a recipient
must provide supportive measures (that meet the definition in Sec.
106.30) unless, for example, a complainant does not wish to receive
supportive measures. Under Sec. 106.45(b)(10) a recipient must
document the reasons why the recipient's response was not
deliberately indifferent and specifically, if a recipient does not
provide a complainant with supportive measures, the recipient must
document the reasons why such a response was not clearly
unreasonable in light of the known circumstances.
\164\ Section 106.45(b)(1)(i); see also Brian Bardwell, No One
is an Inappropriate Person: The Mistaken Application of Gebser's
``Appropriate Person'' Test to Title IX Peer-Harassment Cases, 68
Case W. Res. L. Rev. 1343, 1364-65 (2018) (``Title IX certainly does
not suggest that offenders should not be punished for creating a
hostile environment, but its implementation has consistently focused
more heavily on taking actions on behalf of the students whom that
environment has denied the benefit of their education.''). The
Department's focus in these final regulations is on ensuring that
recipients take action to restore and preserve a complainant's equal
educational access, leaving recipients discretion to make
disciplinary decisions when a respondent is found responsible.
---------------------------------------------------------------------------
The Department's guidance set forth a liability standard more like
reasonableness, or even strict liability,\165\ instead of deliberate
indifference, to evaluate a recipient's response to sexual harassment.
The 2001 Guidance, withdrawn 2011 Dear Colleague Letter, and 2017 Q&A,
took the position that a recipient's response to sexual harassment must
effectively stop harassment and prevent its recurrence.\166\ The
Department's guidance did not distinguish between an ``investigation''
to determine how to appropriately respond to the complainant (for
instance, by providing supportive measures) and an
[[Page 30045]]
investigation for the purpose of potentially punishing a
respondent.\167\ Similarly, the 2001 Guidance, withdrawn 2011 Dear
Colleague Letter, and 2017 Q&A used the phrases ``interim measures'' or
``interim steps'' to describe measures to help a complainant maintain
equal educational access.\168\ However, unlike these final regulations'
definition of ``supportive measures'' in Sec. 106.30, the Department
guidance implied that such measures were only available during the
pendency of an investigation (i.e., during an ``interim'' period), did
not mandate offering supportive measures, did not clarify whether
respondents also may receive supportive measures,\169\ and did not
specify that supportive measures should not be punitive, disciplinary,
or unreasonably burden the other party. The Department's guidance
recommended remedies for victims \170\ and disciplinary sanctions
against harassers \171\ but did not specify that remedies are mandatory
for complainants, and disciplinary sanctions cannot be imposed on a
respondent without following a fair investigation and adjudication
process, thereby lacking clarity as to whether interim punitive or
disciplinary action is appropriate. These final regulations clarify
that supportive measures cannot be punitive or disciplinary against any
party and that disciplinary sanctions cannot be imposed against a
respondent unless the recipient follows a grievance process that
complies with Sec. 106.45.\172\ The Department's guidance instructed
recipients to investigate even when the complainant did not want the
recipient to investigate,\173\ and directed recipients to honor a
complainant's request for the complainant's identity to remain
undisclosed from the respondent, unless a public institution owed
constitutional due process obligations that would require that the
respondent know the complainant's identity.\174\ These final
regulations obligate a recipient to initiate a grievance process when a
complainant files, or a Title IX Coordinator signs, a formal
complaint,\175\ so that the Title IX Coordinator takes into account the
wishes of a complainant and only initiates a grievance process against
the complainant's wishes if doing so is not clearly unreasonable in
light of the known circumstances. Unlike the Department's guidance,
these final regulations prescribe that the only recipient official who
is authorized to initiate a grievance process against a respondent is
the Title IX Coordinator (by signing a formal complaint). As discussed
in the ``Formal Complaint'' subsection of the ``Section 106.30
Definitions'' section of this preamble, the Department believes this
restriction will better ensure that a complainant's desire not to be
involved in a grievance process or desire to keep the complainant's
identity undisclosed to the respondent will be overridden only by a
trained individual (i.e., the Title IX Coordinator) and only when
specific circumstances justify that action. These final regulations
clarify that the recipient's decision not to investigate when the
complainant does not wish to file a formal complaint will be evaluated
by the Department under the deliberate indifference standard; that is,
whether that decision was clearly unreasonable in light of the known
circumstances.\176\ Similarly, a Title IX Coordinator's decision to
sign a formal complaint initiating a grievance process against the
complainant's wishes \177\ also will be
[[Page 30046]]
considered under the deliberate indifference standard. At the same
time, these final regulations ensure that a recipient must offer
supportive measures to a complainant, regardless of whether the
complainant decides to file, or the Title IX Coordinator decides to
sign, a formal complaint.\178\ With or without a grievance process that
determines a respondent's responsibility, these final regulations
require a recipient to offer supportive measures to a complainant,
tailored to each complainant's unique circumstances,\179\ similar to
the Department's 2001 Guidance that directed a recipient to take
timely, age-appropriate action, ``tailored to the specific situation''
with respect to providing ``interim'' measures to help a
complainant.\180\ These final regulations, however, clarify that
supportive measures must be offered not only in an ``interim'' period
during an investigation, but regardless of whether an investigation is
pending or ever occurs. While the Department's guidance did not address
emergency situations arising out of sexual harassment allegations,
these final regulations expressly authorize recipients to remove a
respondent from the recipient's education programs or activities on an
emergency basis, with or without a grievance process pending, as long
as post-deprivation notice and opportunity to challenge the removal is
given to the respondent.\181\ A recipient's decision to initiate an
emergency removal will also be evaluated under the deliberate
indifference standard.
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\165\ 2001 Guidance at iv, vi (in response to public comment
concerned that requiring an ``effective'' response by the school,
with respect to stopping and preventing recurrence of harassment,
meant a school would have to be ``omniscient,'' the 2001 Guidance in
its preamble insisted that ``Effectiveness is measured based on a
reasonableness standard. Schools do not have to know beforehand that
their response will be effective.''). Nonetheless, the 2001 Guidance
stated the liability standard as requiring ``effective corrective
actions to stop the harassment [and] prevent its recurrence,'' which
ostensibly holds a recipient strictly liable to ``stop'' and
``prevent'' sexual harassment. 2001 Guidance at 10, 12. Whether or
not the liability standard set forth in Department guidance is
characterized as one of ``reasonableness'' or ``strict liability,''
in these final regulations the Department desires to utilize a ``not
clearly unreasonable in light of the known circumstances'' liability
standard (i.e., deliberate indifference) as the general standard for
a school's response, so that schools must comply with all the
specific requirements set forth in these final regulations, and a
school's actions with respect to matters that are not specifically
set forth are measured under a liability standard that preserves the
discretion of schools to take into account the unique factual
circumstances of sexual harassment situations that affect a school's
students and employees.
\166\ 2001 Guidance at 15 (stating recipients ``should take
immediate and appropriate steps to investigate or otherwise
determine what occurred and take prompt and effective steps
reasonably calculated to end any harassment, eliminate a hostile
environment if one has been created, and prevent harassment from
occurring again''); id. at 10 (``Schools are responsible for taking
prompt and effective action to stop the harassment and prevent its
recurrence.''); id. at 12 (a recipient ``is responsible for taking
immediate effective action to eliminate the hostile environment and
prevent its recurrence.''); 2011 Dear Colleague Letter at 4
(recipients must ``take immediate action to eliminate the harassment
[and] prevent its recurrence''); 2017 Q&A at 3 (referencing the 2001
Guidance's approach to preventing recurrence of sexual misconduct).
\167\ 2001 Guidance at 15 (``Regardless of whether the student
who was harassed, or his or her parent, decides to file a formal
complaint or otherwise request action on the student's behalf . . .
the school must promptly investigate to determine what occurred and
then take appropriate steps to resolve the situation. The specific
steps in an investigation will vary depending upon the nature of the
allegations, the source of the complaint, the age of the student or
students involved, the size and administrative structure of the
school, and other factors. However, in all cases the inquiry must be
prompt, thorough, and impartial.''); 2011 Dear Colleague Letter at
4-5.
\168\ Compare Sec. 106.30 (defining ``supportive measures'' as
individualized services provided to a complainant or respondent that
are non-punitive, non-disciplinary, and do not unreasonably burden
the other party yet are designed to restore or preserve a person's
equal access to education) with 2001 Guidance at 16 (``It may be
appropriate for a school to take interim measures during the
investigation of a complaint. For instance, if a student alleges
that he or she has been sexually assaulted by another student, the
school may decide to place the students immediately in separate
classes or in different housing arrangements on a campus, pending
the results of the school's investigation) (emphasis added). 2011
Dear Colleague Letter at 16 (``Title IX requires a school to take
steps to protect the complainant as necessary, including taking
interim steps before the final outcome of the investigation. . . .
The school should notify the complainant of his or her options to
avoid contact with the alleged perpetrator and allow students to
change academic or living situations as appropriate.'') (emphasis
added); 2017 Q&A at 2-3 (``It may be appropriate for a school to
take interim measures during the investigation of a complaint'' and
insisting that schools not make such measures available only to one
party) (emphasis added). Describing such individualized services in
Sec. 106.30 as ``supportive measures'' rather than as ``interim''
measures or ``interim'' steps reinforces that supportive measures
must be offered to a complainant whether or not a grievance process
is pending, and reinforces that the final regulations authorize
initiation of a grievance process only where the complainant has
filed, or the Title IX Coordinator has signed, a formal complaint.
Sec. 106.44(a); Sec. 106.44(b)(1); Sec. 106.30 (defining ``formal
complaint'').
\169\ See, e.g., 2017 Q&A at 3 (providing that schools must not
make interim measures available only to one party).
\170\ 2001 Guidance at 10 (``The recipient is, therefore, also
responsible for remedying any effects of the harassment on the
victim, as well as for ending the harassment and preventing its
recurrence. This is true whether or not the recipient has `notice'
of the harassment.''); id. at 16-17. The 2011 Dear Colleague Letter
took a similar approach, requiring schools to ``take immediate
action to eliminate the harassment, prevent its recurrence, and
address its effects.'' 2011 Dear Colleague Letter at 4; see also id.
at 15 (``effective corrective action may require remedies for the
complainant'').
\171\ See 2001 Guidance at 16 (``Appropriate steps should be
taken to end the harassment. For example, school personnel may need
to counsel, warn, or take disciplinary action against the harasser,
based on the severity of the harassment or any record of prior
incidents or both.''); 2011 Dear Colleague Letter at 15 (addressing
sexual harassment may necessitate ``counseling or taking
disciplinary action against the harasser''); 2017 Q&A at 6
(``Disciplinary sanction decisions must be made for the purpose of
deciding how best to enforce the school's code of student conduct
while considering the impact of separating a student from her or his
education. Any disciplinary decision must be made as a proportionate
response to the violation.'').
\172\ Section 106.30 (defining ``supportive measures''); Sec.
106.44(a); Sec. 106.45(b)(1).
\173\ 2001 Guidance at 15 (``Regardless of whether the student
who was harassed, or his or her parent, decides to file a formal
complaint or otherwise request action on the student's behalf
(including in cases involving direct observation by a responsible
employee), the school must promptly investigate to determine what
occurred and then take appropriate steps to resolve the
situation.''); 2011 Dear Colleague Letter at 4.
\174\ 2001 Guidance at 17-18 (if the complainant desires that
the complainant's identity not be disclosed to the alleged harasser,
but constitutional due process owed by a public school means that
``the alleged harasser could not respond to the charges of sexual
harassment without that information'' then ``in evaluating the
school's response, OCR would not expect disciplinary action against
an alleged harasser.''); 2011 Dear Colleague Letter at 5 (``If the
complainant requests confidentiality or asks that the complaint not
be pursued, the school should take all reasonable steps to
investigate and respond to the complaint consistent with the request
for confidentiality or request not to pursue an investigation. If a
complainant insists that his or her name or other identifiable
information not be disclosed to the alleged perpetrator, the school
should inform the complainant that its ability to respond may be
limited'' if due process owed by a public institution requires
disclosure of the complainant's identity to the respondent.); 2014
Q&A at 21-22 (``When weighing a student's request for
confidentiality that could preclude a meaningful investigation or
potential discipline of the alleged perpetrator, a school should
consider a range of factors. . . . A school should take requests for
confidentiality seriously, while at the same time considering its
responsibility to provide a safe and nondiscriminatory environment
for all students, including the student who reported the sexual
violence.'').
\175\ Section 106.44(b)(1); Sec. 106.45(b)(3)(i); Sec. 106.30
(defining ``formal complaint'').
\176\ Section 106.44(a); Sec. 106.45(b)(10)(ii) (requiring a
recipient to document its reasons why it believes its response to a
sexual harassment incident was not deliberately indifferent).
\177\ Complainants may not wish for a recipient to investigate
allegations for a number of legitimate reasons. The Department
understands that a recipient may, under some circumstances, reach
the conclusion that initiating a grievance process when a
complainant does not wish to participate is necessary, but endeavors
through these final regulations to respect a complainant's autonomy
with respect to how a recipient responds to a complainant's
individual situation by, for example, requiring such a conclusion to
be reached by the specially trained Title IX Coordinator (whose
obligations include having communicated with the complainant about
the complainant's wishes) and requiring the recipient to document
the reasons why the recipient believes that its response was not
deliberately indifferent. Sec. 106.44(a); Sec. 106.45(b)(10).
\178\ Section 106.44(a).
\179\ Section 106.44(a) (requiring the recipient to offer
supportive measures to a complainant, and requiring the Title IX
Coordinator to discuss supportive measures with a complainant and
consider the complainant's wishes regarding supportive measures);
Sec. 106.30 (defining ``supportive measures'' as ``individualized
services'').
\180\ 2001 Guidance at 16.
\181\ Section 106.44(c).
---------------------------------------------------------------------------
These final regulations impose specific requirements on recipients
responding to sexual harassment, and failure to comply constitutes a
violation of these Title IX regulations and, potentially,
discrimination under Title IX. In addition to the specific requirements
imposed by these final regulations, all other aspects of a recipient's
response to sexual harassment are evaluated by what was not clearly
unreasonable in light of the known circumstances.\182\ Recipients must
also document their reasons why each response to sexual harassment was
not deliberately indifferent.\183\
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\182\ Section 106.44(b)(2) (providing that recipient responses
to sexual harassment must be non-deliberately indifferent, meaning
not clearly unreasonable in light of the known circumstances, and
must comply with all the specific requirements in Sec. 106.44(a),
regardless of whether a formal complaint is ever filed).
\183\ Section 106.45(b)(10). As revised, this provision states
that if a recipient does not provide supportive measures as part of
its response to sexual harassment, the recipient specifically must
document why that response was not clearly unreasonable in light of
the known circumstances (for example, perhaps the complainant did
not want any supportive measures).
---------------------------------------------------------------------------
In this manner, the Department believes that these final
regulations create clear legal obligations that facilitate the
Department's robust enforcement of a recipient's Title IX
responsibilities. The mandatory obligations imposed on recipients under
these final regulations share the same aim as the Department's guidance
(i.e., ensuring that recipients take actions in response to sexual
harassment that are reasonably calculated to stop harassment and
prevent recurrence of harassment); however, these final regulations do
not unrealistically hold recipients responsible where the recipient
took all steps required under these final regulations, took other
actions that were not clearly unreasonable in light of the known
circumstances, and a perpetrator of harassment reoffends. Recipients
cannot be guarantors that sexual harassment will never occur in
education programs or activities,\184\ but recipients can and will,
under these final regulations, be held accountable for responding to
sexual harassment in ways designed to ensure complainants' equal access
to education without depriving any party of educational access without
due process or fundamental fairness.\185\
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\184\ Under the liability standard set forth in Department
guidance, recipients were expected to take actions that ``stop the
harassment and prevent its recurrence.'' See, e.g., 2001 Guidance at
12. Even if a recipient expelled a respondent, issued a no-trespass
order against the respondent, and took all other conceivable
measures to try to eliminate and prevent the recurrence of the
sexual harassment, under that liability standard the recipient was
still responsible for any unforeseen and unexpected recurrence of
sexual harassment. The Department believes the preferable way of
ensuring that recipients remedy sexual harassment in its education
programs or activities is set forth in these final regulations,
whereby a recipient must take specified actions, and a recipients'
decisions with respect to discretionary actions are evaluated in
light of the known circumstances.
\185\ As discussed in the ``Role of Due Process in the Grievance
Process'' section of this preamble, implementing remedies and
sanctions without due process protections sometimes resulted in the
denial of another party's equal access to the recipient's education
programs or activities because the other party was not afforded
notice and a meaningful opportunity to respond to the allegations of
sexual harassment.
---------------------------------------------------------------------------
Additionally, the Department clarifies in Sec. 106.44(a) that the
Department may not require a recipient to restrict rights protected
under the U.S. Constitution, including the First Amendment, the Fifth
Amendment, and the Fourteenth Amendment, to satisfy the recipient's
duty to not be deliberately indifferent under this part. This language
incorporates principles articulated in the 2001 Guidance \186\ and
mirrors Sec. 106.6(d) in the NPRM, which remains the same in these
final regulations and states that nothing in Part 106 of Title 34 of
the Code of Federal Regulations, which includes these final
regulations, requires a recipient to restrict rights protected under
the U.S. Constitution. With this revision in Sec. 106.44(a) the
Department reinforces the premise of Sec. 106.6(d), cautioning
recipients not to view restrictions of constitutional rights as a means
of satisfying the duty not to be deliberately indifferent to sexual
harassment under Title IX.
---------------------------------------------------------------------------
\186\ 2001 Guidance at 22.
---------------------------------------------------------------------------
Role of Due Process in the Grievance Process
As discussed above in the ``Adoption and Adaption of the Supreme
Court's Framework to Address Sexual Harassment'' section of this
preamble, the Supreme Court has held that sexual harassment is a form
of sex discrimination under Title IX, and that a recipient commits
intentional sex discrimination when the recipient knows of conduct that
could constitute actionable sexual harassment and responds in a manner
that is deliberately indifferent.\187\ However, the Supreme Court's
Title IX cases have not specified conditions under which a recipient
must initiate disciplinary proceedings against a person accused of
sexual harassment, or what procedures must apply in any such
disciplinary proceedings, as part of a recipient's non-deliberately
indifferent response to sexual harassment.\188\ Similarly, the
[[Page 30047]]
Supreme Court has not addressed procedures that a recipient must use in
a disciplinary proceeding resolving sexual harassment allegations under
Title IX in order to meet constitutional due process of law
requirements (for recipients who are State actors), or requirements of
fundamental fairness (for recipients who are not State actors).
---------------------------------------------------------------------------
\187\ See the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section of this preamble.
\188\ See, e.g., Davis, 526 U.S. at 654 (holding that
plaintiff's complaint should not be dismissed as a matter of law
because plaintiff ``may be able to show both actual knowledge and
deliberate indifference on the part of the Board, which made no
effort whatsoever either to investigate or to put an end to the
harassment'' without indication as to whether an investigation was
required, or what due process procedures must be applied during such
an investigation); see also Grayson Sang Walker, The Evolution and
Limits of Title IX Doctrine on Peer Sexual Assault, 45 Harv. C.R.-
C.L. L. Rev. 95, fn. 139 (2010) (``Davis was silent on the scope,
thoroughness, and timeliness of any investigation that a school may
undertake and the procedures that should apply at a grievance
hearing. To the extent that Davis can be interpreted as a call for
some type of investigation and adjudication of sexual harassment
complaints, the instruction represents the triumph of form over
substance.'').
---------------------------------------------------------------------------
At the time initial regulations implementing Title IX were issued
by HEW in 1975, the Federal courts had not yet addressed recipients'
Title IX obligations to address sexual harassment as a form of sex
discrimination; thus, the equitable grievance procedures required in
the 1975 rule did not contemplate the unique circumstances that sexual
harassment allegations present, where through an equitable grievance
process a recipient often must weigh competing narratives about a
particular incident between two (or more) individuals and arrive at a
factual determination in order to then decide whether, or what kind of,
actions are appropriate to ensure that no person is denied educational
opportunities on the basis of sex.
The Department's guidance since 1997 has acknowledged that
recipients have an obligation to respond to sexual harassment that
constitutes sex discrimination under Title IX by applying the ``prompt
and equitable'' grievance procedures in place for resolution of
complaints of sex discrimination required under the Department's
regulations.\189\ With respect to what constitutes equitable grievance
procedures, the 2001 Guidance (which revised but largely retained the
same recommendations as the 1997 Guidance) interpreted 34 CFR 106.8
(requiring recipients to adopt and publish equitable grievance
procedures) to mean procedures that provide for: ``Adequate, reliable,
and impartial investigation of complaints [of sexual harassment],
including the opportunity to present witnesses and other evidence.''
\190\ The 2001 Guidance advised, ``The specific steps in an
investigation will vary depending upon the nature of the allegations,
the source of the complaint, the age of the student or students
involved, the size and administrative structure of the school, and
other factors. However, in all cases the inquiry must be prompt,
thorough, and impartial.'' \191\
---------------------------------------------------------------------------
\189\ 1997 Guidance (``Schools are required by the Title IX
regulations to have grievance procedures through which students can
complain of alleged sex discrimination, including sexual
harassment.''); 2001 Guidance at 19; 2011 Dear Colleague Letter at
6; 2017 Q&A at 3; 34 CFR 106.8(b) (``A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action
which would be prohibited by this part.'').
\190\ 2001 Guidance at 20 (also specifying that equitable
grievance procedures must provide for ``[d]esignated and reasonably
prompt time frames for the major stages of the complaint process''
and ``[n]otice to the parties of the outcome of the complaint'');
2011 Dear Colleague Letter at 8 (``Any procedures used to adjudicate
complaints of sexual harassment or sexual violence, including
disciplinary procedures, however, must meet the Title IX requirement
of affording a complainant a prompt and equitable resolution.'');
id. at 9-10 (citing to the 2001 Guidance for the requirements that
equitable grievance procedures must include ``[a]dequate, reliable,
and impartial investigation of complaints, including the opportunity
for both parties to present witnesses and other evidence,''
``[d]esignated and reasonably prompt time frames for the major
stages of the complaint process,'' and ``[n]otice to parties of the
outcome of the complaint'' and unlike the 2001 Guidance, which was
silent on what standard of evidence to apply, the 2011 Dear
Colleague Letter took the position that recipients must use only the
preponderance of the evidence standard for sexual harassment
complaints); id. at 11, fn. 29 (adding that in an equitable
grievance process ``[t]he complainant and the alleged perpetrator
must be afforded similar and timely access to any information that
will be used at the hearing'' consistent with FERPA and while
protecting privileged information and withholding from the alleged
perpetrator information about the complainant's sexual history).
\191\ 2001 Guidance at 15; see also id. at 20 (``Procedures
adopted by schools will vary considerably in detail, specificity,
and components, reflecting differences in audiences, school sizes
and administrative structures, State or local legal requirements,
and past experience.'') As explained further in the ``Similarities
and Differences Between the Sec. 106.45 Grievance Process and
Department Guidance'' subsection below in this section of the
preamble, and throughout this preamble, the 2011 Dear Colleague
Letter and 2017 Q&A took additional positions with respect to
procedures that should be part of ``prompt and equitable'' grievance
procedures; however, Department guidance has not set forth specific
procedures necessary to ensure that grievance procedures are
``adequate, reliable, and impartial'' while also complying with due
process.
---------------------------------------------------------------------------
The 2001 Guidance advised: ``The rights established under Title IX
must be interpreted consistent with any federally guaranteed due
process rights involved in a complaint proceeding'' and ``Procedures
that ensure the Title IX rights of the complainant, while at the same
time according due process to both parties involved, will lead to sound
and supportable decisions.''\192\ The withdrawn 2011 Dear Colleague
Letter mentioned due process only with respect to recipients that are
State actors (i.e., public institutions), implied that due process only
benefits respondents, and implied that due process may need to yield to
protect complainants: ``Public and state-supported schools must provide
due process to the alleged perpetrator. However, schools should ensure
that steps taken to accord due process rights to the alleged
perpetrator do not restrict or unnecessarily delay the Title IX
protections for the complainant.'' \193\ The 2017 Q&A did not expressly
reference the need for constitutional due process but directed
recipients to look to the 2001 Guidance as to matters not addressed in
the 2017 Q&A.\194\
---------------------------------------------------------------------------
\192\ 2001 Guidance at 22.
\193\ 2011 Dear Colleague Letter at 12. The withdrawn 2014 Q&A
combined the due process positions of the 2001 Guidance and
withdrawn 2011 Dear Colleague Letter: ``The rights established under
Title IX must be interpreted consistently with any federally
guaranteed due process rights. Procedures that ensure the Title IX
rights of the complainant, while at the same time according any
federally guaranteed due process to both parties involved, will lead
to sound and supportable decisions. Of course, a school should
ensure that steps to accord any due process rights do not restrict
or unnecessarily delay the protections provided by Title IX to the
complainant.'' 2014 Q&A at 13.
\194\ 2017 Q&A at 1.
---------------------------------------------------------------------------
These final regulations build on a premise of the 2001 Guidance and
withdrawn 2011 Dear Colleague Letter--that Title IX cannot be
interpreted in a manner that denies any person due process of law under
the U.S. Constitution. These final regulations reaffirm the premise
expressed in the 2001 Guidance--that due process protections are
important for both complainants and respondents, do not exist solely to
protect respondents, and result in ``sound and supportable'' decisions
in sexual harassment cases.\195\ These final regulations, however,
provide recipients with prescribed procedures that ensure that Title IX
is enforced consistent with both constitutional due process, and
fundamental fairness, so that whether a student attends a public or
private institution, the student has the benefit of a consistent,
transparent grievance process with strong procedural protections
regardless of whether the student is a complainant or respondent.
---------------------------------------------------------------------------
\195\ 2001 Guidance at 22.
---------------------------------------------------------------------------
Neither the 2001 Guidance, nor the withdrawn 2011 Dear Colleague
Letter, nor the 2017 Q&A, informed recipients of what procedures might
be necessary to ensure that a grievance process is both ``adequate,
fair, and reliable'' and consistent with constitutional due process.
While the Department's guidance appropriately and beneficially drew
recipients' attention to the need to take sexual harassment seriously
under Title IX, the lack of specificity in how
[[Page 30048]]
to meet Title IX obligations while ensuring due process protections for
complainants and respondents,\196\ has led to increasing numbers of
lawsuits \197\ and OCR complaints \198\ against recipients since
issuance of the now-withdrawn 2011 Dear Colleague Letter, alleging that
recipients have mishandled Title IX sexual harassment cases resulting
in injustice for complainants and for respondents. Public debates have
emerged questioning whether recipients should leave criminal matters
like sexual assault to the criminal justice system,\199\ or whether
Title IX requires recipients to ``do both''--respond meaningfully to
allegations of sexual harassment (including sexual assault) on
campuses, while also providing due process protections for both
parties.\200\ The Department believes that recipients can and must ``do
both,'' because sexual harassment impedes the equal educational access
that Title IX is designed to protect and because no person's
constitutional rights or right to fundamental fairness should be
denied. These final regulations help recipients achieve both.
---------------------------------------------------------------------------
\196\ E.g., Matthew R. Triplett, Sexual Assault on College
Campuses: Seeking the Appropriate Balance Between Due Process and
Victim Protection, 62 Duke L. J. 487, 489-90 (2012) (``Many colleges
and universities responded to the April 4, 2011 Dear Colleague
Letter . . . by amending their procedures for adjudicating
allegations of sexual assault. Meanwhile, the letter itself has
sparked a debate about the appropriate balance between protecting
victims of assault and ensuring adequate due process for the accused
in the context of campus adjudications. . . . [T]he Dear Colleague
Letter suffers from a fatally inadequate discussion of the
appropriate balance between victim protection and due process.
Specifically, the document has raised more questions than it has
answered, leaving the interests of both victims and accused students
in flux. Because institutions simultaneously face statutory duties
to respond properly to victims' claims of assault and constitutional
or contractual obligations to provide due process to the accused,
better-defined policies . . . are needed. Without such guidance,
institutions are left with a choice. They may closely follow the
OCR's guidelines on victim protection, thereby risking possible due-
process claims from alleged perpetrators, or they may independently
attempt to balance victim-protection and due-process interests and
risk Title IX violations for inadequate victim protection. Under
either approach, institutions face potential liability, and both
victims and alleged perpetrators may be insufficiently protected.'')
(internal citations omitted); Sara Ganim & Nelli Black, An Imperfect
Process: How Campuses Deal with Sexual Assault, CNN.com (Dec. 21,
2015) (Alison Kiss, then-leader of the Clery Center for Security on
Campus explained that ``schools were so eager to reverse years of
mistreatment of victims . . . that some put procedures into place
that led to an unfair process.'' Kiss stated: ``We want to see
[college sexual assault disciplinary hearings] informed by trauma,
and understand the dynamics that some of these crimes have. But they
certainly have to be a hearing that's fair and that's impartial.'');
Emily D. Safko, Are Campus Sexual Assault Tribunals Fair?: The Need
for Judicial Review and Additional Due Process Protections in Light
of New Case Law, 84 Fordham L. Rev. 2289, 2293 (2016) (observing
that prior to Federal policy calling attention to campus sexual
assault, ``[m]any have argued that schools have systematically
failed to hold students accountable for their actions. These
shortcomings, coupled with the prevalence of sexual misconduct on
college campuses, provoked national debate and spurred colleges,
Congress, and the White House to act. Colleges have begun to reform
their policies, especially in light of an April 2011 `Dear
Colleague' letter addressed to all Title IX institutions from [OCR].
Over time, however, these reforms have drawn criticism for
`overcorrecting' the problem by overlooking the important and
legally mandated protection of the interests and rights of those
accused of misconduct.'') (internal citations omitted).
\197\ E.g., Taylor Mooney, How Betsy DeVos plans to change the
rules for handling sexual misconduct on campus, CBS News (Nov. 24,
2019) (``Prior to 2011, the number of lawsuits filed against
universities for failing to provide due process in Title IX cases
averaged one per year. It is expected there will be over 100 such
lawsuits filed in 2019 alone.'').
\198\ E.g., Chronicle of Higher Education, Title IX: Tracking
Sexual Assault Investigations (graph showing significant increase in
number OCR Title IX investigations following the 2011 Dear Colleague
Letter).
\199\ E.g., Sarah L. Swan, Between Title IX and the Criminal
Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Univ.
Kan. L. Rev. 963, 963 (2016) (``In a recent televised debate, four
law professors partnered up to argue for, or against, the following
proposition: `Courts, not campuses, should decide sexual assault
cases.' Their staged debate reflected the heated discussion
occurring in society more broadly over the most appropriate forum
and method for addressing campus sexual assault. As campus sexual
assault has finally ascended to the status of a national concern,
attracting the attention of even the White House, two main camps
have emerged: those who believe campus sexual assault is a crime,
and thus best dealt with in the criminal courts, using criminal law
tools; and those who believe campus sexual assault is a civil rights
violation, and thus best dealt with through university disciplinary
proceedings, using Title IX.'') (internal citation omitted);
Alexandra Brodsky, Against Taking Rape ``Seriously'': The Case
Against Mandatory Referral Laws for Campus Gender Violence, 53 Harv.
C.R.-C.L. L. Rev. 131, 131 (2018) (analyzing State laws proposed in
recent years that would mandate referral of campus sexual assault
incidents to law enforcement and arguing that mandatory referral
laws would decrease victim well-being and reduce the already-low
number of victims willing to report sexual assault to campus Title
IX offices).
\200\ E.g., Association of Title IX Administrators (ATIXA),
ATIXA Position Statement: Why Colleges Are in the Business of
Addressing Sexual Violence 3-4 (Feb. 17, 2017) (noting that
instances of recipients' failure to provide due process has led to
public debate over whether Title IX should even cover criminal
conduct such as sexual assault; observing that courts have recently
begun doing a good job ``scolding'' recipients who do not provide
due process and that OCR cases have included reprimanding recipients
who failed to provide due process to the accused; and opining that
``Some are genuinely concerned that colleges don't afford adequate
due process to accused students. ATIXA shares these due process
concerns. Unlike Title IX opponents however, we do not view this as
a zero sum game, where providing for the needs of victims/survivors
must inherently compromise the rights that attach to those who are
accused of sexual violence. In fact, colleges must do both, and must
do both better.''); Erin E. Buzuvis, Title IX and Procedural
Fairness: Why Disciplined-Student Litigation Does Not Undermine the
Role of Title IX in Campus Sexual Assault, 78 Mont. L. Rev. 71, 71-
72 (2017) (``In the last five years, the Department of Education has
increased its efforts to enforce [Title IX], both resulting from and
contributing to increased public attention to the widespread problem
of sexual assault among students, particularly in higher education.
The increase in both enforcement and public attention has motivated
colleges and universities to improve their policies and practices
for addressing sexual assault, including their disciplinary
processes. . . . In some cases, disciplined-student plaintiffs have
prevailed in overturning their punishment, causing many to suggest
that colleges and universities are `overcorrecting' for earlier
deficiencies in their procedures that lead to under-enforcement of
campus policies banning sexual misconduct. Much of this rhetoric
places blame on Title IX for universities' problems with compliance
and calls, either implicitly or expressly, for repeal of Title IX's
application to sexual assault.'') (internal citations omitted).
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Beginning in mid-2017 when the Department started to examine how
schools, colleges, and universities were applying Title IX to sexual
harassment under then-applicable guidance (e.g., the 2001 Guidance and
the now-withdrawn 2011 Dear Colleague Letter), one of the themes
brought to the Department's attention during listening sessions and
discussions with stakeholders \201\ was that, in the absence of
regulations explaining what fair, equitable procedures compliant with
constitutional due process consist of, recipients have interpreted and
applied the concept of equitable grievance procedures in the sexual
harassment context unevenly across schools, colleges, and universities,
at times employing procedures incompatible with constitutionally
guaranteed due process \202\ and principles of fundamental fairness,
and lacking impartiality and reliability.\203\ As noted
[[Page 30049]]
throughout this preamble including in the ``Personal Stories'' section,
commenters described how grievance procedures applied under the 2001
Guidance and withdrawn 2011 Dear Colleague Letter have lacked basic
procedural protections for complainants and respondents and have
appeared biased for or against complainants, or respondents.\204\ The
result has been unpredictable Title IX adjudication systems under which
complainants and respondents too often have been thrust into
inconsistent, biased proceedings that deprive one or both parties of a
fair process \205\ and have resulted in some determinations regarding
responsibility viewed as unjust and unfair to complainants, and other
determinations regarding responsibility viewed as unjust and unfair to
respondents.\206\
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\201\ The Department met with stakeholders expressing a variety
of positions for and against the then-applicable Department guidance
documents, including advocates for survivors of sexual violence;
advocates for accused students; organizations representing schools
and colleges; attorneys representing survivors, the accused, and
institutions; Title IX Coordinators and other school and college
administrators; child and sex abuse prosecutors; scholars and
experts in law, psychology, and neuroscience; and numerous
individuals who have experienced school-level Title IX proceedings
as a complainant or respondent.
\202\ E.g., Blair A. Baker, When Campus Sexual Misconduct
Policies Violate Due Process Rights, 26 Cornell J. of Law & Pub.
Pol'y 533, 550-51 (2016) (``Since the 2011 Dear Colleague Letter,
many students have sued their schools for procedural due process
violations, alleging they had been found wrongfully responsible for
sexual misconduct. In these cases, courts have begun to recognize
the precarious factors of various universities' disciplinary
procedures when evaluating whether or not a school violated a
student's due process rights. As discussed, these factors include,
but are not limited to, whether the school provided the student with
adequate notice of the charges against him or her, afforded the
student the right to confront, and provided the student with a right
to counsel.'') (internal citations omitted).
\203\ E.g., Association of Title IX Administrators (ATIXA),
ATIXA Position Statement: Why Colleges Are in the Business of
Addressing Sexual Violence 3-4 (Feb. 17, 2017) (acknowledging that
due process has been denied in some recipients' Title IX proceedings
but insisting that ``Title IX isn't the reason why due process is
being compromised . . . . Due process is at risk because of the
small pockets of administrative corruption . . . and because of the
inadequate level of training currently afforded to administrators.
College administrators need to know more about sufficient due
process protections and how to provide these protections in
practice.'') (emphasis added). The Department agrees that recipients
need to know more about sufficient due process protections and what
such protections need to look like in practice, and this belief
underlies the Department's approach to the Sec. 106.45 grievance
process which prescribes specific procedural features instead of
simply directing recipients to provide due process protections, or
be fair, for complainants and respondents. Edward N. Stoner II &
John Wesley Lowery, Navigating Past the ``Spirit Of
Insubordination'': A Twenty-First Century Model Student Conduct Code
With a Model Hearing Script, 31 Journal of Coll. & Univ. L. 1, 10-11
(2004) (noting that the trend among colleges and universities has
been to put into place written student disciplinary codes but,
whether an institution is public or private, a ``better practice''
is to describe in the written disciplinary code exactly what process
will be followed rather than making broad statements about ``due
process'' or ``fundamental fairness''). The Department agrees that
it is more instructive and effective for the Department to describe
what procedures a process must follow, rather than leaving
recipients to translate broad concepts like ``due process'' and
``fundamental fairness'' into Title IX sexual harassment grievance
processes, and unlike the NPRM the final regulations do not
reference ``due process'' but rather prescribe specific procedural
features that a grievance process must contain and apply.
\204\ As noted in the ``Executive Summary'' section of this
preamble, withdrawal of the 2011 Dear Colleague Letter and issuance
of the 2017 Q&A as interim guidance has not resulted in very many
recipients changing their Title IX policies and procedures; thus,
the grievance processes that serve as commenters' examples of biased
or unfair proceedings are largely processes established in response
to the 2001 Guidance or withdrawn 2011 Dear Colleague Letter, and
not in response to the 2017 Q&A. Without the legally binding nature
of these final regulations, the Department does not believe that
recipients will modify their Title IX policies and procedures in a
way that consistently ensures meaningful responses to sexual
harassment and protection of due process for complainants and
respondents.
\205\ E.g., Diane Heckman, The Assembly Line of Title IX
Mishandling Cases Concerning Sexual Violence on College Campuses,
336 West's Educ. L. Reporter 619, 631 (2016) (stating that since
2014 ``there has been an influx of lawsuits contending post-
secondary schools have violated Title IX due to their failure to
properly handle sexual assault claims. What is unusual is that both
sexes are bringing such Title IX mishandling cases due to lack of or
failure to follow proper process and due process from each party's
perspective. A staggering number of cases involve incidents of
alcohol or drug usage or intoxication triggering the issue of the
negating a voluntary consent between the participants.'') (internal
citations omitted).
\206\ Examples of college Title IX sexual assault cases applying
seemingly flawed and biased processes to reach decisions viewed as
unjust, leading to claims that such situations are occurring with
regularity across the country to the detriment of complainants and
respondents, include: Nicolo Taormina, Not Yet Enough: Why New
York's Sexual Assault Law Does Not Provide Enough Protection to
Complainants or Defendants, 24 Journal of L. & Pol'y 595, 595-600
(2016) (detailing the case of a college student where medical
evidence showed violent rape of the complainant by multiple
respondents yet a college hearing panel reached a determination of
non-responsibility in a seemingly biased, non-objective process;
arguing that such a story is not unique and that New York's ``Enough
is Enough'' law, as well as Federal Title IX guidance, ``lack [ ]
strict requirements'' mandating a consistent grievance process and
this ``can lead to unfairness and injustice.''); Cory J.
Schoonmaker, An ``F'' in Due Process: How Colleges Fail When
Handling Sexual Assault, 66 Syracuse L. Rev. 213, 213-15 (2016)
(detailing the case of a college student expelled from college after
being found responsible following allegations of sexual assault by
the respondent's ex-girlfriend, under a seemingly biased, non-
objective process and where a criminal grand jury returned a ``no
charge'' decision indicating there was not enough evidence to
sustain the complainant's allegations even using a standard lower
than preponderance of the evidence; arguing that such a story is not
unique and that ``campus authorities are not equipped, nor are they
capable, of effectively investigating and punishing accusations of
sexual assault.'').
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Compelling stories of complainants whose allegations of sexual
assault go ``unheeded by the institutions they attend and whose
education suffers as a consequence'' \207\ and of respondents who have
been ``found responsible and harshly punished for [sexual assault] in
sketchy campus procedures'' \208\ have led to debate around the issue
of how recipients investigate and adjudicate sexual harassment
(especially sexual assault) under Title IX, and the ``challenge is to
find a way to engage the stories from these different perspectives''
because ``federal regulators and regulated institutions could do
better.'' \209\
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\207\ Deborah L. Brakeman, The Trouble With ``Bureaucracy,'' 7
Cal. L. Rev. Online 66, 67, 77 (2016) (providing ``counterpoints''
to the points raised in Jacob E. Gersen & Jeannie Suk Gersen, The
Sex Bureaucracy, 104 Calif. L. Rev. 881 (2016), as part of the
``productive conversation our nation has been having about campus
sexual assault, its pervasiveness, and the balance struck by the
public policies addressing it'').
\208\ Id. at 67.
\209\ Id. at 77.
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The Department believes that the Federal courts' recognition of
sexual harassment (including sexual assault) as sex discrimination
under Title IX, the Department's guidance advising recipients on how to
respond to allegations of sexual harassment, and these final
regulations, represent critical efforts to promote Title IX's non-
discrimination mandate. With respect to grievance procedures (referred
to in these final regulations as a ``grievance process'' recipients
must use for responding to formal complaints of sexual harassment),
these final regulations build upon the foundation set forth in the
Department's guidance, yet provide the additional clarity and
instruction missing from the Department's guidance as to how recipients
must provide for the needs of complainants, with strong procedural
rights that ensure due process protections for both complainants and
respondents. These procedural rights reflect the very serious nature of
sexual harassment and the life-altering consequences that may follow a
determination regarding responsibility for such conduct. We believe
that the procedures in the Sec. 106.45 grievance process will ensure
that recipients apply a fair, truth-seeking process that furthers the
interests of complainants, respondents, and recipients in accurately
resolving sexual harassment allegations.\210\
---------------------------------------------------------------------------
\210\ E.g., Ashley Hartmann, Reworking Sexual Assault Response
on University Campuses: Creating a Rights-Based Empowerment Model to
Minimize Institutional Liability, 48 Wash. Univ. J. of L. & Pol'y
287, 313 (2015) (``As students file complaints with the Department
of Education, bring Title IX suits with increasing frequency, and
turn to the media for resolution in the court of public opinion,
universities are often forced to prioritize complaints that have the
potential to be most costly to the institution. This forced choice
is often the result of sexual assault response procedures that focus
too narrowly on the rights of either the victim or the accused
student. Failing to create sexual assault response that respects the
rights and needs of both the victim and the accused student has the
potential to leave one student feeling powerless. This
disenfranchisement opens the university to liability from either
perspective, creating a zero-sum game in which university response
caters to the student who has more social, political, or economic
capital. A reformed process of how universities respond to sexual
assault should work to meet the needs of all students while
minimizing university liability.'') (internal citation omitted).
---------------------------------------------------------------------------
The Sec. 106.45 grievance process does not codify current
Department guidance but does build upon the principles recommended in
guidance, while prescribing specific procedures to be consistently
applied by recipients to improve the perception and reality that
recipients are reaching determinations regarding responsibility that
represent just outcomes. At least one State recently considered
codifying the
[[Page 30050]]
withdrawn 2011 Dear Colleague Letter, and decided instead that an
approach much like what these final regulations set forth would be
advisable. The Honorable Edmund G. Brown, Jr., former Governor of
California, vetoed a California bill in 2017 that would have codified
parts of the withdrawn 2011 Dear Colleague Letter, and Governor Brown's
---------------------------------------------------------------------------
veto statement asserted:
Sexual harassment and sexual violence are serious and
complicated matters for colleges to resolve. On the one side are
complainants who come forward to seek justice and protection; on the
other side stand accused students, who, guilty or not, must be
treated fairly and with the presumption of innocence until the facts
speak otherwise. Then, as we know, there are victims who never come
forward, and perpetrators who walk free. Justice does not come
easily in this environment. . . . [T]houghtful legal minds have
increasingly questioned whether federal and state actions to prevent
and redress sexual harassment and assault--well-intentioned as they
are--have also unintentionally resulted in some colleges' failure to
uphold due process for accused students. Depriving any student of
higher education opportunities should not be done lightly, or out of
fear of losing state or federal funding.\211\
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\211\ Edmund G. Brown, Jr., Governor's Veto Message (Oct. 15,
2017) (responding to California Senate Bill 169).
Governor Brown then convened a task force, or working group, to make
recommendations about how California institutions of higher education
should address allegations of sexual misconduct. That working group
released a memorandum detailing those recommendations,\212\ and many of
these recommendations are consistent with the approach taken in these
final regulations as to how postsecondary institutions should respond
to sexual harassment allegations.\213\
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\212\ Governor Edmund G. Brown, Jr.'s Working Group to Address
Allegations of Student Sexual Misconduct on College and University
Campuses in California, Recommendations of the Post-SB 169 Working
Group (Nov. 14, 2018) (referred to hereinafter as ``Recommendations
of the Post-SB 169 Working Group,'' (Nov. 14, 2018)). The Post-SB
169 Working Group was comprised of three members: a senior
administrator and professor at UC Berkeley, an Assistant Dean at
UCLA School of Law, and a retired California Supreme Court justice.
The Post-SB 169 Working Group spent over a year reviewing California
State law, current and prior Federal Title IX guidance, the American
Bar Association Task Force recommendations, and legal scholarship on
the topic of institutional responses to sexual misconduct before
reaching its consensus recommendations.
\213\ See id. It is notable that of the 21 separate topics
covered by the Post-SB 169 Working Group, 20 of those topics reached
recommendations consistent with the provisions in these final
regulations. Only one topic reached a recommendation that would be
precluded under the final regulations: The Post-SB 169 Working Group
recommends that cross-examination at a live hearing occur by the
parties submitting questions through the decision-maker(s), while
the final regulations, Sec. 106.45(b)(6)(i), require that the
parties' advisors conduct the cross-examination. Every other
recommendation reached by the Working Group is either required by,
or permitted under, these final regulations. For further discussion
of live hearings and cross-examination in postsecondary institution
adjudications, see the ``Hearings'' subsection of the ``Section
106.45 Recipient's Response to Formal Complaints'' section of this
preamble.
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Due Process Principles
Whether due process is conceived in terms of constitutional due
process of law owed by State actors, or as principles of fundamental
fairness owed by private actors, the final regulations prescribe a
grievance process grounded in principles of due process for the benefit
of both complainants and respondents, seeking justice in each sexual
harassment situation that arises in a recipient's education program or
activity. ``Due process describes a procedure that justifies outcome;
it provides reasons for asserting that the treatment a person receives
is the treatment he [or she] deserves.'' \214\ ``Due process is a
fundamental constitutional principle in American jurisprudence. It
appears in criminal law, civil law, and administrative law . . . .
[D]ue process is a peculiarly American phenomenon: no other legal
system has anything quite like it. Due process is a legal principle
which has been shaped and developed through the process of applying and
interpreting a written constitution.'' \215\ Due process is ``a
principle which is used to generate a number of specific rights,
procedures, and practices.'' \216\ Due process ``may be thought of as a
demand that a procedure conform to the requirements of formal justice,
and formal justice is a basic feature of our idea of the rule of law.''
\217\ ``Research demonstrates that people's views about their outcomes
are shaped not solely by how fair or favorable an outcome appears to be
but also by the fairness of the process through which the decision was
reached. A fair process provided by a third party leads to higher
perceptions of legitimacy; in turn, legitimacy leads to increased
compliance with the law.'' \218\ ``Fair process'' or ``procedural
justice'' increases outcome legitimacy and thus increased compliance
because it is likely to lead to an accurate outcome, and sends a signal
about an individual's value and worth with respect to society in
general.\219\ The grievance process prescribed in these final
regulations provides a fair process rooted in due process protections
that improves the accuracy and legitimacy of the outcome for the
benefit of both parties.
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\214\ David Resnick, Due Process and Procedural Justice, Nomos
XVIII 214 (1977).
\215\ Id. at 206-207.
\216\ Id. at 208.
\217\ Id. at 209.
\218\ Rebecca Holland-Blumoff, Fairness Beyond the Adversary
System: Procedural Justice Norms for Legal Negotiation, 85 Fordham
L. Rev. 2081, 2084 (2017) (internal citations omitted).
\219\ See id.
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In Rochin v. California,\220\ the Supreme Court reasoned that
deciding whether proceedings in a particular context (there, State
criminal charges against a defendant) met the constitutional guarantee
of due process of law meant ascertaining whether the proceedings
``offend those canons of decency and fairness which express the notions
of justice . . . even toward those charged with the most heinous
offenses.'' \221\ Such ``standards of justice are not authoritatively
formulated anywhere as though they were specifics'' yet are those
standards ``so rooted in the traditions and conscience of our people as
to be ranked as fundamental'' or are ``implicit in the concept of
ordered liberty.'' \222\ Sexual harassment (defined in these final
regulations to include sexual assault) qualifies as one of ``the most
heinous offenses'' that one individual may perpetrate against another.
Perpetration of sexual harassment impedes the equal educational access
that Title IX was enacted to protect. These final regulations aim to
ensure that a determination that a respondent committed sexual
harassment is a ``sound and supportable'' \223\ determination so that
recipients remedy sexual harassment committed in education programs or
activities. Because sexual harassment is a ``heinous offense[ ],''
these final regulations rely on and incorporate ``standards of
justice'' fundamental to notions of ``decency and fairness'' \224\ so
that recipients, parties, and the public view recipients'
determinations regarding responsibility as just and warranted, while
recognizing that Title IX grievance processes are not criminal
proceedings and the constitutional protections granted to criminal
defendants do not apply.\225\
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\220\ 342 U.S. 165 (1952).
\221\ Id. at 169 (internal quotation marks and citations
omitted).
\222\ Id. (internal quotation marks and citations omitted).
\223\ See 2001 Guidance at 22.
\224\ Rochin v. California, 342 U.S. 165, 169 (1952). As
discussed throughout this preamble, due process of law is not
confined to the criminal law context; due process of law applies in
civil and administrative proceedings as well, even though the
precise procedures that are due differ outside the criminal context.
\225\ For example, these final regulations do not permit
application of the criminal standard of evidence (beyond a
reasonable doubt), do not grant respondents a right of self-
representation with respect to confronting witnesses, do not grant
respondents a right to effective assistance of counsel, and do not
purport to protect respondents from ``double jeopardy'' (i.e., by
preventing a complainant from appealing a determination of non-
responsibility).
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[[Page 30051]]
The Department, as an agency of the Federal government, is subject
to the U.S. Constitution, including the Fifth Amendment, and will not
interpret Title IX to compel a recipient, whether public or private, to
deprive a person of due process rights.\226\ `` `Once it is determined
that due process applies, the question remains what process is due.' ''
\227\ Procedural due process of law requires at a minimum notice and a
meaningful opportunity to be heard.\228\ Due process `` `is not a
technical conception with a fixed content unrelated to time, place and
circumstances.' '' \229\ Instead, due process ```is flexible and calls
for such procedural protections as the particular situation
demands.''\230\ ``The fundamental requirement of due process is the
opportunity to be heard `at a meaningful time and in a meaningful
manner.' '' \231\
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\226\ 83 FR 61480-81; see, e.g., Peterson v. City of Greenville,
373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915); 2001
Guidance at 22 (``The rights established under Title IX must be
interpreted consistent with any federally guaranteed due process
rights involved in a complaint proceeding'').
\227\ Goss v. Lopez, 419 U.S. 565, 577 (quoting Morrissey, 408
U.S. at 481).
\228\ Goss, 419 U.S. at 580 (``At the very minimum, therefore,
students facing suspension and the consequent interference with a
protected property interest must be given some kind of notice and
afforded some kind of hearing.''); Mathews v. Eldridge, 424 U.S.
319, 333 (1976).
\229\ Mathews, 424 U.S. at 334 (quoting Cafeteria Workers v.
McElroy, 367 U.S. 886, 895 (1961)).
\230\ Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408
U.S. 471, 481 (1972) (internal quotation marks omitted)).
\231\ Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380
U.S. 545, 552 (1965)).
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The Department recognizes that the Supreme Court has not ruled on
what constitutional due process looks like in the ``particular
situation'' \232\ of Title IX sexual harassment adjudications, and that
Federal appellate courts have taken different approaches to which
specific procedures are constitutionally required under the general
proposition that due process in the educational discipline context
requires some kind of notice and some kind of opportunity to be
heard,\233\ and for private institutions not subject to constitutional
requirements, which specific procedures are required to comport with
fundamental fairness.\234\ In these final regulations, the Department
deliberately declines to adopt wholesale the procedural rules that
govern, for example, Federal civil lawsuits, Federal criminal
proceedings, or proceedings before administrative law judges.
Understanding that schools, colleges, and universities exist first and
foremost to provide educational services to students, are not courts of
law, and are not staffed with judges and attorneys or vested with
subpoena powers, the standardized Title IX sexual harassment grievance
process in Sec. 106.45 contains procedural requirements, rights, and
protections that the Department believes are reasonably designed for
implementation in the setting of an education program or activity.
---------------------------------------------------------------------------
\232\ Mathews, 424 U.S. at 334 (internal quotation marks and
citations omitted).
\233\ See Goss, 419 U.S. at 578-79 (holding that in the public
school context ``the interpretation and application of the Due
Process Clause are intensely practical matters'' that require at a
minimum notice and ``opportunity for hearing appropriate to the
nature of the case'') (internal quotation marks and citations
omitted); see also, e.g., Doe v. Baum, 903 F.3d 575, 581 (6th Cir.
2018) (holding that where university Title IX sexual misconduct
proceeding turned on credibility of parties, the university must
provide a hearing with opportunity for parties to cross-examine each
other); cf. Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56,
70 (1st Cir. 2019) (declining to require the same opportunity for
cross-examination as required by the Sixth Circuit but requiring
university to conduct ``reasonably adequate questioning'' designed
to ferret out the truth, if the university declined to grant
students the right to cross-examine at a hearing); see also, e.g.,
Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir. 2019)
(interpreting State law guarantee of ``basic fairness'' in a private
college's sexual misconduct disciplinary proceeding).
\234\ Lisa Tenerowicz, Student Misconduct at Private Colleges
and Universities: A Roadmap for ``Fundamental Fairness'' in
Disciplinary Proceedings, 42 Boston Coll. L. Rev. 653 (2001) (``In
the absence of constitutional protections, courts generally have
required that private school disciplinary procedures adhere to a
`fundamental' or `basic' fairness standard and not be arbitrary or
capricious. More precisely, state and federal courts have often held
that a private school's disciplinary decisions are fundamentally
fair if they comport with the rules and procedures that the school
itself has promulgated.'') (internal citation omitted.)
---------------------------------------------------------------------------
While due process of law in some contexts (for example, criminal
proceedings) is especially concerned with protecting the rights of
accused defendants, the Department views due process protections as a
critical part of a Title IX grievance process for the benefit of both
complainants and respondents, as well as recipients. Both parties
benefit from equal opportunities to participate by putting forward the
party's own view of the allegations. Both parties, as well as
recipients, benefit from a process geared toward reaching factually
accurate outcomes. The Sec. 106.45 grievance process prescribed in the
final regulations is consistent with constitutional due process
guarantees \235\ and conceptions of fundamental fairness,\236\ in a
manner designed to accomplish the critical goals of ensuring that
recipients resolve sexual harassment allegations to improve parties'
sense of fairness and lead to reliable outcomes, while lessening the
risk that sex-based bias will improperly affect outcomes.\237\ In the
words of the Honorable Ruth Bader Ginsburg, Associate Justice,
discussing the #MeToo movement and the search for balance between sex
equality and due process, ``It's not one or the other. It's both. We
have a system of justice where people who are accused get due process,
so it's just applying to this field what we have applied generally.''
\238\
[[Page 30052]]
The final regulations seek to apply fundamental principles of due
process to the ``particular situation'' \239\ of Title IX sexual
harassment allegations. We believe the framework of the Sec. 106.45
grievance process furthers Title IX's non-discrimination mandate
consistent with constitutional guarantees of due process of law and
conceptions of fundamental fairness.
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\235\ See Goss v. Lopez, 419 U.S. 565, 583-84 (1975) (``On the
other hand, requiring effective notice and informal hearing
permitting the student to give his [or her] version of the events
will provide a meaningful hedge against erroneous action. At least
the disciplinarian will be alerted to the existence of disputes
about facts and arguments about cause and effect. He may then
determine himself to summon the accuser, permit cross-examination,
and allow the student to present his own witnesses. In more
difficult cases, he may permit counsel. In any event, his discretion
will be more informed and we think the risk of error substantially
reduced.''); Nicola A. Boothe-Perry, Enforcement of Law Schools'
Non-Academic Honor Codes: A Necessary Step Towards Professionalism?,
89 Neb. L. Rev. 634, 662-63 (2012) (``Thus, while well-settled that
there is no specific procedure required for due process in school
disciplinary proceedings, the cases establish the bare minimum
requirements of: (1) Adequate notice of the charges; (2) reasonable
opportunity to prepare for and meet them; (3) an orderly hearing
adapted to the nature of the case; and (4) a fair and impartial
decision . . . . Where disciplinary measures are imposed pursuant to
non-academic reasons (e.g., fraudulent conduct), as opposed to
purely academic reasons, the courts are inclined to reverse
decisions made by the institutions without these minimal procedural
safeguards.'') (internal citations omitted).
\236\ E.g., Kathryn M. Reardon, Acquaintance Rape at Private
Colleges and Universities: Providing for Victims' Educational and
Civil Rights, 38 Suffolk Univ. L. Rev. 395, 406-07 (2005) (``Courts
around the nation have taken a relatively consistent stance on what
type of process private colleges and universities owe to their
students. . . . Courts expect that schools will adhere to basic
concepts of fairness in dealing with students in disciplinary
matters. Schools must employ the procedures set out in their own
policies, and those policies must not be offensive to fundamental
notions of fairness.'').
\237\ For discussion of sex-based bias in Title IX grievance
proceedings, the ``Section 106.45(a) Treatment of Complainants or
Respondents Can Violate Title IX'' subsection of the ``General
Requirements for Sec. 106.45 Grievance Process'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section
of this preamble.
\238\ Jeffrey Rosen, Ruth Bader Ginsburg Opens Up About #MeToo,
Voting Rights, and Millennials, The Atlantic (Feb. 15, 2018)
(``Rosen: What about due process for the accused? Ginsburg: Well,
that must not be ignored and it goes beyond sexual harassment. The
person who is accused has a right to defend herself or himself, and
we certainly should not lose sight of that. Recognizing that these
are complaints that should be heard. There's been criticism of some
college codes of conduct for not giving the accused person a fair
opportunity to be heard, and that's one of the basic tenets of our
system, as you know, everyone deserves a fair hearing. Rosen: Are
some of those criticisms of the college codes valid? Ginsburg: Do I
think they are? Yes. Rosen: I think people are hungry for your
thoughts about how to balance the values of due process against the
need for increased gender equality. Ginsburg: It's not one or the
other. It's both. We have a system of justice where people who are
accused get due process, so it's just applying to this field what we
have applied generally.'').
\239\ Mathews, 424 U.S. at 334 (internal quotation marks and
citations omitted).
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Precisely because due process is a ``flexible'' concept dictated by
the demands of a ``particular situation,'' \240\ the Department
recognizes, and these final regulations reflect, that due process
protections in the ``particular situation'' of a recipient's response
to sexual harassment may dictate different procedures than what might
be appropriate in other situations (e.g., the noneducational context of
a criminal trial \241\ or the administrative context of a government
agency's determination of eligibility for public benefits,\242\ or the
educational context involving allegations of student academic
misconduct \243\). Allegations of sexual harassment in an educational
environment present unique challenges for the individuals involved, and
for the recipient, with respect to how to best ensure that parties are
treated fairly and accurate outcomes result.
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\240\ Id.
\241\ For instance, in the criminal context, the U.S.
Constitution imposes specific due process of law requirements that
the Supreme Court has not required to be given to defendants in
noncriminal matters, such as the right to be provided with effective
assistance of counsel, the right to personally confront witnesses,
and the right to have guilt determined under a standard of evidence
described as ``beyond a reasonable doubt.'' See, e.g., I.N.S. v.
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (``Consistent with the
civil nature of the proceeding, various protections that apply in
the context of a criminal trial do not apply in a deportation
hearing.'').
\242\ E.g., Mathews, 424 U.S. at 348 (``The ultimate balance [of
due process owed] involves a determination as to when, under our
constitutional system, judicial-type procedures must be imposed upon
administrative action to assure fairness.'').
\243\ The Supreme Court has distinguished between the level of
deference courts should give schools with respect to student
discipline resulting from academic misconduct or academic failure,
and other types of student misconduct. E.g., Bd. of Curators of the
Univ. of Mo. v. Horowitz, 435 U.S. 78, 86 (1978) (stating that the
Court will grant greater deference to public schools in decision
making in academic, as opposed to disciplinary, dismissals and,
would require more stringent procedural requirements in dismissals
based upon purely disciplinary matters).
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Furthermore, due process protections in the ``particular
situation'' \244\ of elementary and secondary schools may differ from
protections necessitated by the ``particular situation'' of
postsecondary institutions. Thus, some procedural rules in the Sec.
106.45 grievance process apply only to postsecondary institution
recipients,\245\ in recognition that postsecondary institutions present
a different situation than elementary and secondary schools because,
for instance, most students in elementary and secondary schools tend to
be under the age of majority such that certain procedural rights
generally cannot be exercised effectively (even by a parent acting on
behalf of a minor \246\). For example, unlike postsecondary
institutions, elementary and secondary schools are not required to hold
a hearing under these final regulations.\247\ The final regulations aim
to accomplish the objective of a consistent, predictable Title IX
grievance process while respecting the fact that elementary and
secondary schools differ from postsecondary institutions.
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\244\ Mathews, 424 U.S. at 334 (internal quotation marks and
citations omitted).
\245\ Section 106.45(b)(6)(i) requires postsecondary
institutions to use a live hearing model to adjudicate formal
complaints, while Sec. 106.45(b)(6)(ii) does not require elementary
or secondary schools to hold any kind of hearing to adjudicate
formal complaints.
\246\ The final regulations expressly recognize legal rights of
parents and guardians to act on behalf of an individual with respect
to exercising Title IX rights. Sec. 106.6(g).
\247\ Section 106.45(b)(6)(i)-(ii).
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However, the Department does not believe that the public or private
status of a recipient, or the size of the recipient's student body,
constitutes a different ``particular situation'' \248\ that
necessitates or advises different procedural protections. The
Department recognizes that some recipients are State actors with
responsibilities to provide due process of law to students and
employees under the U.S. Constitution, including the Fourteenth
Amendment, while other recipients are private institutions that do not
have constitutional obligations to their students and employees. As
previously explained, the Department, as an agency of the Federal
government, will not interpret or enforce Title IX in a manner that
would require any recipient, including a private recipient, to deprive
a person of constitutional due process rights.\249\ As a matter of
policy, the Department cannot justify requiring a different grievance
process for complainants and respondents based on whether the recipient
is a public or private entity, or based on whether the recipient
enrolls a large number or small number of students. Additionally, many
private schools owe students and employees fundamental fairness, often
recognized by contract and under State laws \250\ and while conceptions
of fundamental fairness may not always equate to constitutional due
process requirements, there is conceptual and practical overlap between
the two.\251\ Title IX applies to all recipients of Federal financial
assistance, whether the recipient is a public or private entity and
regardless of the size of the recipient's student body. Fair, reliable
procedures that best promote the purposes of Title IX are as important
in public schools, colleges, and universities as in private ones, and
are as important in large institutions as in small ones. The final
regulations therefore prescribe a consistent grievance process for
application by all recipients without distinction as to public or
private status, or the size of the institution.\252\
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\248\ Mathews, 424 U.S. at 334 (internal quotation marks and
citations omitted).
\249\ The Department also cannot interpret Title IX to compel a
private recipient to deprive a person of their due process rights
because the Department, as an agency of the Federal government, is
subject to the U.S. Constitution. In Peterson v. City of Greenville,
373 U.S. 244, 247-48 (1963), the U.S. Supreme Court held that the
City of Greenville through an ordinance could not compel a private
restaurant to operate in a manner that treated patrons differently
on the basis of race in violation of the Equal Protection Clause of
the Fourteenth Amendment. Similarly, in Truax v. Raich, 239 U.S. 33,
38 (1915), the Supreme Court held that Arizona cannot use a State
statute to compel private entities to employ a specific percentage
of native-born Americans as employees in violation of the Equal
Protection Clause of the Fourteenth Amendment. Like the City of
Greenville and the State of Arizona, the Department cannot compel
private schools to comply with Title IX in a manner that would
require the private recipient to violate a person's due process
rights.
\250\ E.g., Doe v. College of Wooster, 243 F. Supp. 3d 875, 890-
91 (N.D. Ohio 2017) (``[C]ourts consider whether the disciplinary
process afforded by the [private] academic institution was
`conducted with notions of basic fairness' ''); Psi Upsilon of Pa.
v. Univ. of Pa., 591 A.2d 755, 758 (Pa. 1991) (holding that
``disciplinary procedures established by the [private] institution
must be fundamentally fair'').
\251\ See Holly Hogan, The Real Choice in a Perceived ``Catch-
22'': Providing Fairness to Both the Accused and Complaining
Students in College Sexual Assault Disciplinary Proceedings, 38
Journal of L. & Educ. 27 (2009) (``Even when the due process clause
does not apply to a private university's disciplinary proceedings, a
private university must nevertheless comply with its own procedural
rules. . . . Because private higher education institutions often
model their disciplinary proceedings on due process requirements, as
a practical matter'' the same principles apply to both private and
public institutions) (internal citations omitted).
\252\ As discussed in the ``Regulatory Impact Analysis'' section
of this preamble, the Department considered the impact of these
final regulations on small entities, but as a policy matter, does
not believe that different procedures should apply based on the size
of a recipient's student body or the amount of a recipient's
revenues.
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[[Page 30053]]
The grievance process prescribed in the final regulations is
important for effective enforcement of Title IX and is consistent with
constitutional due process and conceptions of fundamental fairness. The
Sec. 106.45 grievance process is designed for the particular
``practical matters'' \253\ presented by allegations of sexual
harassment in the educational context. The Department acknowledges that
constitutional due process does not require the specific procedures
included in the Sec. 106.45 grievance process. However, the Sec.
106.45 grievance process is consistent with the constitutional
requirement to provide notice and a meaningful opportunity to be heard,
and does so for the benefit of complainants and respondents, to address
policy considerations unique to sex discrimination in the form of
sexual harassment in education programs and activities. For example, if
a recipient dismisses a formal complaint or any allegations in the
formal complaint, the complainant should know why any of the
complainant's allegations were dismissed and should also be able to
challenge such a dismissal by appealing on certain grounds.\254\ Even
though constitutional due process may not require the specific
procedure of a written notice of the dismissal stating the reasons for
the dismissal, or the right to appeal the dismissal, such strong due
process protections help ensure that a recipient is not erroneously
dismissing an allegation due to a procedural irregularity, lack of
knowledge of newly discovered evidence, or a conflict of interest or
bias.\255\ As discussed throughout this preamble and especially in the
``Section 106.45 Recipient's Response to Formal Complaints'' section,
each of the procedural requirements in Sec. 106.45 is prescribed
because the Department views the requirement as important to ensuring a
fair process for both parties rooted in the fundamental due process
principles of notice and meaningful opportunities to be heard.\256\
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\253\ See Goss, 419 U.S. at 578-79.
\254\ See Sec. 106.45(b)(3); Sec. 106.45(b)(8)(i).
\255\ Id.
\256\ See Goss, 419 U.S. at 578-79 (holding that in the public
school context ``the interpretation and application of the Due
Process Clause are intensely practical matters'' that require at a
minimum notice and ``opportunity for hearing appropriate to the
nature of the case'') (internal quotation marks and citations
omitted).
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In issuing these final regulations with a standardized grievance
process for Title IX sexual harassment, the Department has carefully
considered the public comments on the NPRM. The public comments have
been crucial in promulgating the procedures that are most needed to (i)
improve perceptions that Title IX sexual harassment allegations are
resolved fairly and reliably, (ii) avoid intentional or unintentional
injection of sex-based biases and stereotypes into proceedings that too
often have been biased for or against parties on the basis of sex,
mostly because the underlying allegations at issue involve issues of
sex-based conduct, and (iii) promote accurate, reliable outcomes so
that victims of sexual harassment receive remedies restoring and
preserving equal educational opportunities and respondents are not
treated as responsible unless a determination of responsibility is
factually reliable.
Summary of Sec. 106.45
As a whole, Sec. 106.45 contains ten groups of provisions \257\
that together are intended to provide a standardized framework that
governs recipients' responses to formal complaints of sexual harassment
under Title IX:
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\257\ Although not located in Sec. 106.45, the final
regulations also add Sec. 106.71 to expressly prohibit retaliation
against any individual exercising rights under Title IX,
specifically protecting any individual's right to participate or
refuse to participate in a Title IX grievance process.
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(1) Section 106.45(a) acknowledges that a recipient's treatment of
a complainant, or a respondent, could constitute sex discrimination
prohibited under Title IX.
(2) Section 106.45(b)(1)(i)-(x) requires recipients to adopt a
grievance process that:
Treats complainants and respondents equitably by
recognizing the need for complainants to receive remedies where a
respondent is determined responsible and for respondents to face
disciplinary sanctions only after a fair process determines
responsibility;
objectively evaluates all relevant evidence both
inculpatory and exculpatory, and ensures that rules voluntarily adopted
by a recipient treat the parties equally;
requires Title IX Coordinators, investigators, decision-
makers, and persons who facilitate informal resolutions to be free from
conflicts of interest and bias and trained to serve impartially without
prejudging the facts at issue;
presumes the non-responsibility of respondents until
conclusion of the grievance process;
includes reasonably prompt time frames for the grievance
process;
informs all parties of critical information about the
recipient's procedures including the range of remedies and disciplinary
sanctions a recipient may impose, the standard of evidence applied by
the recipient to all formal complaints of sexual harassment under Title
IX (which must be either the preponderance of the evidence standard, or
the clear and convincing evidence standard), the recipient's appeal
procedures, and the range of supportive measures available to both
parties; and
protects any legally recognized privilege from being
pierced during a grievance process.
(3) Section 106.45(b)(2) requires written notice of the allegations
to both parties, including informing the parties of the right to select
an advisor of choice.
(4) Sections 106.45(b)(3)-(b)(4) require recipients to investigate
formal complaints, describe when a formal complaint is subject to
mandatory or discretionary dismissal, require the recipient to notify
the parties of any dismissal, and authorize discretionary consolidation
of formal complaints when allegations of sexual harassment arise out of
the same facts or circumstances.
(5) Section 106.45(b)(5)(i)-(vii) requires recipients to
investigate formal complaints in a manner that:
keeps the burden of proof and burden of gathering evidence
on the recipient while protecting every party's right to consent to the
use of the party's own medical, psychological, and similar treatment
records;
provides the parties equal opportunity to present fact and
expert witnesses and other inculpatory and exculpatory evidence;
does not restrict the parties from discussing the
allegations or gathering evidence;
gives the parties equal opportunity to select an advisor
of the party's choice (who may be, but does not need to be, an
attorney);
requires written notice when a party's participation is
invited or expected for an interview, meeting, or hearing;
provides both parties equal opportunity to review and
respond to the evidence gathered during the investigation; and
sends both parties the recipient's investigative report
summarizing the relevant evidence, prior to reaching a determination
regarding responsibility.
(6) Section 106.45(b)(6) requires a live hearing with cross-
examination conducted by the parties' advisors at postsecondary
institutions, while making hearings optional for elementary and
secondary schools (and other recipients that are not postsecondary
[[Page 30054]]
institutions) so long as the parties have equal opportunity to submit
written questions for the other parties and witnesses to answer before
a determination regarding responsibility is reached.
(7) Section 106.45(b)(7) requires a decision-maker who is not the
same person as the Title IX Coordinator or the investigator to reach a
determination regarding responsibility by applying the standard of
evidence the recipient has designated in the recipient's grievance
process for use in all formal complaints of sexual harassment (which
must be either the preponderance of the evidence standard or the clear
and convincing evidence standard), and the recipient must
simultaneously send the parties a written determination explaining the
reasons for the outcome.
(8) Section 106.45(b)(8) requires recipients to offer appeals
equally to both parties, on the bases that procedural deficiencies,
newly discovered evidence, or bias or conflict of interest affected the
outcome.
(9) Section 106.45(b)(9) allows recipients to offer and facilitate
informal resolution processes, within certain parameters to ensure such
informal resolution only occurs with the voluntary, written consent of
both parties; informal resolution is not permitted to resolve
allegations that an employee sexually harassed a student.
(10) Section 106.45(b)(10) requires recipients to maintain records
and documentation concerning sexual harassment reports, formal
complaints, investigations, and adjudications; and to publish materials
used for training Title IX Coordinators, investigators, decision-
makers, and persons who facilitate informal resolutions on the
recipient's website or make these materials available upon request for
inspection by members of the public.
The Department has concluded that the above provisions, rooted in
due process principles of notice and a meaningful opportunity to be
heard and the importance of an impartial process before unbiased
officials, set forth the procedures adapted for the practical realities
of sexual harassment allegations in an educational context that are
most needed to (i) improve perceptions that Title IX sexual harassment
allegations are resolved fairly and reliably, (ii) avoid intentional or
unintentional injection of sex-based biases and stereotypes into Title
IX proceedings, and (iii) promote accurate, reliable outcomes, all of
which effectuate the purpose of Title IX to provide individuals with
effective protection from discriminatory practices.
Similarities and Differences Between the Sec. 106.45 Grievance Process
and Department Guidance
The Department's guidance in 1997, 2001, 2011, and 2017 has
interpreted the Department's regulatory requirement in 34 CFR 106.8(b)
for recipients to ``adopt and publish grievance procedures providing
for prompt and equitable resolution of student and employee complaints
alleging any action which would be prohibited by this part'' as
applying to complaints of sexual harassment.\258\ The Sec. 106.45
grievance process, and the Department's guidance, largely address the
same topics related to an ``equitable'' grievance process, and the
final regulations are in many respects consistent with the Department's
guidance. For example, these final regulations and the Department's
guidance all address equal opportunity for both parties to present
witnesses and evidence.\259\ The Department's guidance has always
stated that grievance procedures must provide for ``adequate, reliable,
and impartial investigation of complaints,'' \260\ and these final
regulations adopt that premise and explicitly instruct recipients to
investigate and adjudicate in a manner that is (and ensure that Title
IX personnel receive training to be) impartial and unbiased,\261\ and
to objectively evaluate all relevant evidence, including inculpatory
and exculpatory evidence.\262\ These final regulations also expressly
protect information protected by legally recognized privileges,\263\
ensure that a party's treatment records are not used in a grievance
process without the party's voluntary, written consent,\264\ require
that both parties receive copies of evidence gathered during the
investigation that is ``directly related to the allegations'' in the
formal complaint,\265\ require that both parties be sent a copy of the
recipient's investigative report that summarizes all relevant evidence
including inculpatory and exculpatory evidence,\266\ and deem questions
and evidence about a complainant's prior sexual behavior to be
irrelevant (with two limited exceptions).\267\ The Department believes
that these requirements build upon the expectation set forth in prior
guidance, that grievance procedures must provide for the ``adequate,
reliable, and impartial investigation of complaints.'' \268\
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\258\ 1997 Guidance (recipients are required by regulations to
adopt and publish grievance procedures providing for the ``prompt
and equitable'' resolution of sex discrimination complaints and
these procedures apply to complaints of sexual harassment); 2001
Guidance at 19; 2011 Dear Colleague Letter at 8; 2017 Q&A at 3.
\259\ 1997 Guidance (to be ``equitable'' grievance procedures
should provide for ``the opportunity to present witnesses and other
evidence''); 2001 Guidance at 20; 2011 Dear Colleague Letter at 9;
2017 Q&A at 3; see also Sec. 106.45(b)(5)(ii) (grievance process
must give both parties equal opportunity to present witnesses,
including fact and expert witnesses, and other inculpatory and
exculpatory evidence); Sec. 106.45(b)(5)(iii) (recipients may not
restrict the ability of parties to gather evidence).
\260\ 1997 Guidance (grievance procedures must provide for
``adequate, reliable, and impartial investigation of complaints'');
2001 Guidance at 20; 2011 Dear Colleague Letter at 9; 2017 Q&A at 3;
2017 Q&A at 4 (adding that an ``equitable'' investigation should
include using a trained investigator to ``objectively evaluate the
credibility of parties and witnesses, synthesize all available
evidence--including both inculpatory and exculpatory evidence--and
take into account the unique and complex circumstances of each
case.'').
\261\ Section 106.45(b)(1)(iii).
\262\ Section 106.45(b)(1)(ii); Sec. 106.45(b)(5)(vii); Sec.
106.45(b)(6).
\263\ Section 106.45(b)(1)(x).
\264\ Section 106.45(b)(5)(i).
\265\ Section 106.45(b)(5)(vi).
\266\ Section 106.45(b)(5)(vii).
\267\ Section 106.45(b)(6).
\268\ 2001 Guidance at 20.
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Some provisions in Sec. 106.45 address topics by requiring
procedures that Department guidance did not address, or addressed as a
recommendation. For instance, Sec. 106.45(b)(2) requires written
notice of the allegations with sufficient details to permit parties to
prepare for an initial interview, which the recipient must send to both
parties ``upon receipt of a formal complaint,'' and Sec.
106.45(b)(5)(v) requires written notice to the parties in advance of
any meeting, interview, or hearing conducted as part of the
investigation or adjudication. The 1997 Guidance, 2001 Guidance, and
withdrawn 2011 Dear Colleague Letter were silent on the need for
written notice. The 2017 Q&A stated that recipients ``should'' send
written notice of allegations at the start of an investigation, but
only ``to the responding party'' and stated that both parties
``should'' receive written notice to enable meaningful participation in
any interview or hearing.\269\ The final regulations make these written
notices mandatory, for the benefit of both parties. As a further
example, the 1997 Guidance, 2001 Guidance, and 2017 Q&A did not require
any specific adjudicatory model, and while the withdrawn 2011 Dear
Colleague Letter referred to ``the hearing'' \270\ (thus presuming that
adjudications take place after a hearing), no guidance document
specifically addressed whether or not recipients should, or must, hold
live
[[Page 30055]]
hearings. Section 106.45(b)(6) clarifies that only postsecondary
institutions must hold live hearings; other recipients (including
elementary and secondary schools) may use a hearing or non-hearing
model for adjudication. Similarly, the 1997 Guidance, 2001 Guidance,
and 2017 Q&A did not address whether the parties have rights to
confront or cross-examine other parties and witnesses,\271\ and while
the withdrawn 2011 Dear Colleague Letter ``strongly discourage[d]''
recipients ``from allowing the parties personally to question or cross-
examine each other during the hearing'' \272\ the withdrawn 2011 Dear
Colleague Letter did not discourage or prohibit cross-examination by
the parties' advisors, as required for postsecondary institutions under
Sec. 106.45(b)(6)(i).
---------------------------------------------------------------------------
\269\ 2017 Q&A at 4.
\270\ 2011 Dear Colleague Letter at 12.
\271\ The 2017 Q&A did not require a hearing or cross-
examination, but stated that any rights regarding procedures such as
cross-examination must be given equally to both parties. 2017 Q&A at
5.
\272\ 2011 Dear Colleague Letter at 12.
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In some significant respects, Sec. 106.45 departs from positions
taken in the Department's guidance by allowing recipients flexibility
or discretion in a manner discouraged by guidance. For example, Sec.
106.45(b)(1)(v) permits recipients to designate the recipient's own
``reasonably prompt time frames'' for conclusion of a grievance
process. While the 1997 Guidance \273\ and 2001 Guidance \274\ were
silent on what ``prompt'' resolution of complaints meant, the withdrawn
2011 Dear Colleague Letter recommended a 60 calendar day time
frame.\275\ The 2017 Q&A did not recommend a particular time frame for
``prompt'' resolution and referenced the 2001 Guidance approach on this
subject.\276\ Similarly, Sec. 106.45(b)(1)(vii) and Sec.
106.45(b)(7)(i) permit each recipient to select between one of two
standards of evidence to use in resolving formal complaints of sexual
harassment. While the 1997 Guidance and 2001 Guidance were silent on
the appropriate standard of evidence, the withdrawn 2011 Dear Colleague
Letter acknowledged that at the time, many recipients used the
preponderance of the evidence standard, some recipients used the clear
and convincing evidence standard, and took the position that only the
preponderance of the evidence standard could be consistent with Title
IX's non-discrimination mandate.\277\ The 2017 Q&A approved of using
either the preponderance of the evidence standard or the clear and
convincing evidence standard but cautioned recipients not to apply the
preponderance of the evidence standard unless the recipient also used
that standard for non-sexual misconduct proceedings.\278\ Finally,
Sec. 106.45(b)(9) allows recipients the option of facilitating
informal resolution processes (except as to allegations that an
employee sexually harassed a student) so long as both parties
voluntarily agree to attempt an informal resolution. Both the 2001
Guidance \279\ and withdrawn 2011 Dear Colleague Letter \280\
discouraged schools from using mediation (or other informal resolution)
to resolve sexual assault allegations. The 2017 Q&A allowed informal
resolution \281\ but unlike Sec. 106.45(b)(9)(iii), did not prohibit
informal resolution of allegations that an employee sexually harassed a
student.
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\273\ 1997 Guidance (a recipient's grievance procedures should
provide for ``designated and reasonably prompt timeframes for the
major stages of the complaint process'').
\274\ 2001 Guidance at 20 (recipients' grievance procedures
should provide for ``designated and reasonably prompt timeframes for
the major stages of the complaint process'').
\275\ 2011 Dear Colleague Letter at 12 (``Based on OCR
experience, a typical investigation takes approximately 60 calendar
days following receipt of the complaint. Whether OCR considers
complaint resolutions to be timely, however, will vary depending on
the complexity of the investigation and the severity and extent of
the harassment.'').
\276\ 2017 Q&A at 3.
\277\ 2011 Dear Colleague Letter at 11 (``Thus, in order for a
school's grievance procedures to be consistent with Title IX
standards, the school must use a preponderance of the evidence
standard.'').
\278\ 2017 Q&A at 5, fn. 19.
\279\ 2001 Guidance at 21 (``In some cases, such as alleged
sexual assaults, mediation will not be appropriate even on a
voluntary basis.'').
\280\ 2011 Dear Colleague Letter at 8 (``Moreover, in cases
involving allegations of sexual assault, mediation is not
appropriate even on a voluntary basis.'').
\281\ 2017 Q&A at 4.
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For the purpose of ensuring that recipients reach accurate
determinations regarding responsibility so that victims of sexual
harassment receive remedies in furtherance of Title IX's non-
discrimination mandate in a manner consistent with constitutional due
process and fundamental fairness, the Sec. 106.45 grievance process
prescribes more detailed procedural requirements than set forth in the
Department's guidance in some respects, and leaves recipients with
greater flexibility than guidance in other respects.
Public Comment
In response to our invitation in the NPRM, we received more than
124,000 comments on the proposed regulations. We discuss substantive
issues under topical headings, and by the sections of the final
regulations to which they pertain.
Analysis of Comments and Changes
An analysis of the public comments and changes in the final
regulations since the publication of the NPRM follows.
Personal Stories
Comments: Numerous commenters shared with the Department
experiences they have had as complainants or respondents, or people
supporting complainants or respondents.
Relating to complainants, such personal experiences included the
following:
A wide variety of individuals shared their stories
identifying as survivors or victims, whether or not they were also
involved as complainants in Title IX proceedings. These included
females, males, LGBTQ individuals, individuals with disabilities,
persons of color, individuals who grew up in both rural and urban
settings, veterans who were assaulted in the military, and individuals
who described being sexually assaulted or harassed more than 50 years
ago. The personal stories recounted sexual harassment and assault
incidents occurring at all stages in life, including elementary school
students, high school students, undergraduate students at public and
private universities, graduate students at public and private
universities, faculty at public and private universities, and other
university employees.
Commenters shared stories as individuals who knew victims
and witnessed the aftermath of trauma. These individuals included
parents and grandparents of students who had been assaulted, classmates
and friends of victims, teachers at all levels, professors, counselors,
coaches, Title IX Coordinators, rape crisis advocates, graduate
students and teaching assistants, resident advisors, social workers,
and health care professionals.
The Department received comments from individuals who
described harassment or assault by a wide variety of individuals. These
included stalkers, intimate partners and ex-partners, friends,
classmates, coaches, teachers and professors, non-students or non-
employees on campus, and parents or family members.
The Department received comments from individuals who
described harassment or assault from before Title IX existed, after
Title IX was enacted, prior to and after the Department's withdrawn
2011 Dear Colleague Letter and withdrawn 2014 Q&A, and prior to and
after the Department's 2017 Q&A. We heard from individuals who
described harassment or assault in a
[[Page 30056]]
wide variety of locations, including on campuses of postsecondary
institutions in locations such as student housing, classrooms, and,
libraries, on elementary and secondary school grounds, locker rooms,
off-campus housing and parties, while commuting to and from school,
school-sponsored events, bars and parking lots, and study abroad
programs.
The Department received comments from individuals who
described a range of traumatic incidents. Some commenters described
inappropriate comments, inappropriate text messages or social media
communication, and inappropriate touching. Other commenters recounted
incidents of rape or attempted rape, gang rape, or forcible rape. Some
commenters described being raped while they were passed out, while
others described being drugged and raped, waking up with no memory but
suffering symptoms of rape, or being pressured or intimidated into
consenting to sex.
The Department received comments from individuals who did
not report their experiences for various reasons, including fearing
that no one would believe them, not knowing who to report to or the
process for reporting, feeling too ashamed to report, or not wanting to
relive the trauma and wanting to put the incident behind them.
The Department received comments from individuals about
many detrimental effects that sexual harassment and assault can have on
victims. Individuals described what it is like to be raped, sexually
assaulted, and sexually harassed, what they felt during the attack, and
what they felt afterward. Commenters told the Department that rape and
sexual assault, in particular, changed their lives forever, and has
severe consequences emotionally, physically, academically, and
professionally. Commenters also told us about severe post-traumatic
stress disorder (PTSD) following sexual assault, about developing
disabling physical or mental conditions due to rape, about pregnancy
and sexually transmitted diseases resulting from rape, and about the
lasting impact on their personal lives. Individuals told us about
negative consequences they experienced in the aftermath of sexual
assault, including nightmares, emotional breakdowns, lack of sleep,
inability to focus or concentrate, changed eating habits, loss of
confidence and self-esteem, stress, immense shame, lack of trust, and
loneliness.
Commenters described carrying the pain of victimization
with them for life, even after more than half a century. Some
commenters shared that they constantly live in fear of seeing their
attacker again. Some commenters told us that their experiences affected
future relationships and caused them to have trust issues for long
periods of time, sometimes for life. Some commenters told us their
assaults led to drug and alcohol abuse.
Some commenters shared stories of friends or loved ones
who committed suicide following sexual harassment or assault. Other
commenters told us personally about suicidal thoughts and attempted
suicide. We heard from some individuals who described still feeling
unsafe once the complaint process began and individuals who suffered
increased trauma from having to see their attackers on campus or at a
disciplinary proceeding.
Individuals shared the severe impact of sexual harassment
or assault on their educational experience, including the ability to
learn and balance pressures of life. Commenters shared that sexual
assault or harassment caused them to fail at school, or withdraw or
drop out. Some commenters described the lifetime financial costs of
dealing with the aftermath of sexual assault including legal and
medical costs that exceeded $200,000, and lost income as a result of
dropping out of school.
The Department also received stories from individuals
about the dynamics of sexual assault and harassment. Commenters told us
that sexual abuse is based on power and inequity and that women are
victims of male privilege. Several commenters shared personal stories
about how serial offenders keep offending due to the power dynamic.
Several commenters shared personal stories describing how sexual
harassment by professors at schools was well known, but the schools did
nothing.
The Department also received stories from many individuals
about how the current system was inadequate to protect victims of
sexual assault or deliver justice. Commenters shared that they did not
press charges or report because they had no confidence in the school
system or criminal justice system. Commenters told us that they
believed their institution was hiding the true numbers of campus rapes.
Commenters told us that many Title IX reports are ignored by schools
and by police officers. One individual told us that when the individual
reported, city police told the individual it was a campus police issue,
while campus police refused to take action because the individual had
not reported while being raped, leaving the individual to be raped many
more times by the same perpetrator while the authorities did nothing.
Individuals told us that perpetrators bully victims into keeping quiet,
telling them no one will believe them.
Individuals shared stories about how their institutions
failed them. Some were told by their institutions or teachers that no
one would believe them or told not to file a complaint. Some commenters
shared that complaints were not taken seriously by school officials and
that lack of action caused them to drop out of school to avoid their
attacker. Commenters described experiences as complainants and told us
that the Title IX Coordinator seemed more interested in proving the
respondent innocent than helping the complainant.
Several complainants told us they were blamed and shamed
by authority figures including having their clothing choices
questioned, decisions questioned, intelligence questioned, motives
questioned, and being told they should have resisted more or been
louder in saying ``no.''
Individuals shared their experiences showing that it is
difficult to prove rape in ``he said/she said'' situations. Individuals
told us that respondents were found to not be at fault by hearing
panels, including in instances where insufficient evidence was found
despite multiple complainants reporting against the same respondent.
Several individuals told us the current process took too
long, sometimes nine months to over a year or more to get a resolution.
One commenter described reporting sexual harassment at a university,
along with other women who had reported the same harassing faculty
member, but the university's process took so long and was so painful
that the commenter left the university without finishing her degree,
abandoning her career in a STEM (science, technology, engineering,
medicine) field and resulting in $75,000 lost to taxpayers, wasted on
funding a degree she did not finish.
Individuals told us that respondents were given minimal
punishment that did not fit the severity of the offense, or that
victims were forced to encounter their perpetrators even after the
respondents were found responsible. They told us that their
perpetrators were well respected students or athletes in school, or
prominent professors at universities, which caused the perpetrators to
receive light punishments or no punishment at all. They told us they
could not get attackers banned from their dorms or classes.
[[Page 30057]]
We also heard from individuals who faced retaliation for
filing complaints. These individuals faced continued harassment by
respondents, received lower grades from professors reported as
harassers, or lost scholarships due to rebuffing sexual advances from
teachers.
We also heard from several commenters about how the Title
IX system was able to deliver justice for them in the aftermath of
sexual harassment or assault, including commenters who believed that
the withdrawn 2011 Dear Colleague Letter was the reason why their
school responded appropriately to help them after they had been
sexually assaulted. They told us that the counselors and resources
available to help victims were the only reason they could survive the
trauma or the Title IX process. They told us that the Title IX
Coordinator was able to help them in ways that allowed them to stay in
school. They also told us of instances where the campus system was
finally able to remove a serial sexual predator. The father of a
stalked student told us that he feared participation in a Title IX
proceeding, but that because of Title IX, the stalker was excluded, and
the campus is a safer place. One student stated a college made
necessary changes after the student filed a Title IX complaint.
A number of individuals told us that the proposed
regulations would not be adequate to help victims, based on their own
experiences with the Title IX process. Commenters expressed concern
that the proposed rules would cause students to drop out of school and
lose scholarships. Other commenters asserted the proposed rules would
enable serial rapists and harassers.
Some individuals told us they never would have reported
under the proposed rules because of the cross-examination requirement.
Individuals who went through cross-examination in the criminal context
told us how they suffered to get justice and that it is a traumatic
experience that led to PTSD and more therapy. Several of these
individuals told us defense attorneys badgered or humiliated them.
One commenter expressed concern that, under the proposed
rules' definition of sexual harassment, it could be argued that the
rape that a friend endured was not a sufficiently severe impairment to
the friend's educational access to be covered by Title IX.
One commenter, who was a professor, told us that years ago
a professor from another school who was interviewing for a position at
the commenter's institution molested the commenter during an off-campus
dinner. The commenter believed that under that institution's current
policies, the commenter had a clear-cut reporting line, and the
offender would, at a minimum, have received no further consideration
for this job. This commenter claimed, however, that under the
Department's proposed rules, even as a faculty member the commenter
would not be protected.
Commenters were also concerned about confidentiality.
Several individuals stated they told a trusted coach or teacher, who
was forced under current rules to report even though the individuals
wanted the conversation to remain confidential. Other individuals
stated they would not have reported under the proposed rules due to
fear of backlash because of the public nature of reports or
proceedings. One commenter recounted a friend's experience and stated
that because the commenter's friend's name was not kept confidential
during Title IX proceedings, the commenter's friend quit playing school
basketball and dropped out of school to get mental health counseling,
due to the public embarrassment from the Title IX proceeding.
Relating to respondents, such personal experiences included the
following:
A wide variety of individuals submitted personal stories
of respondents. These included student-respondents in past or present
Title IX proceedings, individuals with disabilities such as autism,
male and female respondents, respondents of color, faculty-respondents,
and graduate-student respondents. We also heard from individuals who
were associated with respondents such as friends and classmates,
parents and family members, including parents of both males and females
and parents of respondents with disabilities, such as OCD (obsessive-
compulsive disorder) and autism. Some personal stories came from
professors and teachers who had seen the system in action. Some
personal stories came from self-proclaimed liberals, Democrats,
feminists, attorneys of respondents, and a religious leader.
A number of the personal stories shared in comments
explained the devastating effects that an allegation of sexual assault
or harassment can have on a respondent, even if the respondent is never
formally disciplined. Commenters contended that one false accusation
can ruin someone's life, and told us that the consequences follow
respondents for life. Other commenters stated that false allegations,
and resulting Title IX processes, destroyed the futures of respondents
and kept them from becoming lawyers, doctors, military officers,
academics, and resulted in loss of other career opportunities.
Many commenters told us that false allegations and the
Title IX process caused severe emotional distress for respondents and
their families. This included several stories of respondents attempting
suicide after allegedly false allegations, several stories of
respondents suffering from severe trauma, including anxiety disorders,
stress, and PTSD, several stories of respondents suffering clinical
depression, and several stories of respondents suffering from lack of
sleep and changed eating habits.
Several commenters told us that, as to respondents who
were allowed to stay in school, being falsely accused of sexual
misconduct affected their grades and academic performance, and ability
to concentrate. Several commenters described the immense public shame
and ridicule that resulted from a false allegation of sexual assault.
Several professors commented that their academic freedom
was curtailed due to unfair anti-sexual harassment policies.
Several commenters described severe financial consequences
to respondents and their families due to needing to hire legal
representation to defend against allegedly false allegations.
Commenters described incurring costs that ranged from $10,000 in legal
fees to over $100,000 in legal and medical bills, including
psychological treatment, to complete the process of clearing a
respondent's name in the wake of a Title IX complaint. One comment was
from parents who described feeling forced to put their house up for
sale to pay to exonerate their child from baseless allegations.
Several commenters stated that the status quo system
disproportionately affects certain groups of respondents, including
males, males of color, males of lower socioeconomic status, and
students with disabilities. One commenter argued that the system is
tilted in favor of females of means who are connected to the school's
donor base.
A number of respondents or other commenters described
respondents being falsely accused and/or unfairly treated by their
school in the Title IX process. Commenters shared numerous situations
where there was an abundance of evidence indicating consent from both
parties, but the respondent either was still found responsible for
sexual assault or was forced to endure an expensive and
[[Page 30058]]
traumatic process before being found non-responsible.
Several commenters told us stories where complainants were
ex-intimate partners who did not report sexual assault allegations
until weeks or months after a breakup, usually coinciding with the
respondent finding a new intimate partner, under circumstances that the
commenters believed showed that the complainant's motive was jealousy.
Commenters shared stories of situations where two students
engaged in sexual activity and allegations disputed over consent where
both parties had been drinking, and commenters believed that many
schools treated any intoxication as making a male respondent
automatically liable for sexual assault even when neither party had
been drinking so much that they were incapacitated.
Commenters shared stories of situations where respondents
were accused by complainants whom respondents had never met or did not
recognize. Commenters shared stories of situations where respondents
had befriended or comforted individuals who had experienced trauma and
eventually found themselves being accused of sexual assault,
harassment, or stalking.
Commenters described their experiences with Title IX cases
using negative terms to portray unfairness such as ``Kafka-esque,''
``1984-like,'' ``McCarthy-esque,'' and ``medieval star chamber.''
We heard from several commenters who specifically argued
that the withdrawn 2011 Dear Colleague Letter was the cause of the
unfair Title IX process for respondents. One commenter expressed that
the withdrawn 2011 Dear Colleague Letter destroyed the commenter's
family.
Many commenters opined that various parts of the proposed
regulations would have helped prove their innocence or avoided or
lessened the emotional, reputational, and financial hardships they
experienced due to false accusations.
A number of commenters expressed that they believed that
Title IX investigations were biased in favor of the complainant and
gave examples such as allowing only evidence in the complainant's
favor, failing to give the hearing panel any opportunity to gauge the
complainant's credibility, disallowing the respondent's witnesses from
testifying but allowing testimony from all of the complainant's
witnesses, and giving the complainant more time to prepare for a
hearing or access to more evidentiary materials than the respondent was
given.
A number of commenters discussed the lack of due process
protections in their experience with Title IX proceedings. Several
students and professors detailed how they were expelled or fired
without being permitted to give their side of the story. Several
commenters described cases where respondents were suspended
indefinitely from college without due process over an allegedly
unprovable and false accusation of sexual harassment. Several
commenters expressed how institutions took unilateral disciplinary
action against respondents with no investigation. Two commenters noted
that respondents' requests for autism accommodations were denied or
appropriate disability accommodations were never offered.
A number of commenters discussed how respondents were not
allowed to have representation present when they met with the Title IX
investigator or during their hearing. Several commenters stated that
their advisor or lawyer was not allowed to speak during the hearing.
A number of commenters described a lack of notice of the
charges against them, of the details of the offenses they had allegedly
committed, or of the evidence being used against them. Several
commenters noted that the Title IX investigation produced a report
describing evidence that respondents were not shown until after the
opportunity to respond had passed. Several commenters complained that
respondents were given no access to investigation documents.
A number of commenters wrote that respondents felt like
they were presumed guilty from the beginning by their institution.
Several commenters expressed that they felt like the burden of proof
rested completely on the respondent to prove innocence and they felt
this was both unfair and un-American.
A number of commenters described cases where respondents
were denied the ability to cross-examine complainants, and even when
the institution asked the complainant some questions, the institution
refused to ask follow up questions during the hearing. Several
commenters recounted cases where investigators did not ask the
complainant follow up questions even though there were inconsistencies
in the complainant's story.
Several commenters told us that the university's Title IX
decision-maker did not ask the questions that respondents submitted
during the hearing. One commenter described a case where a respondent
was not allowed to ask the complainant any questions at all; the
respondent had to submit any questions ahead of time to a committee
chairperson who, in turn, chose which questions to ask the complainant,
and chose not to ask the complainant questions that the commenter had
wanted asked.
One attorney of a respondent described a situation where
both the respondent and the complainant were allowed to submit only a
written statement before the Title IX office made the final
determination. The complainant stated that the conduct at issue between
the two was, at least initially, consensual. But due to the absence of
cross-examination, the respondent's attorney was never allowed to ask
the complainant how the respondent was supposed to know when the
conduct became nonconsensual.
One commenter stated that the respondent was told by the
institution that ``hearsay was absolutely admissible'' yet the
respondent had no opportunity to cross-examine witnesses making hearsay
statements.
Several commenters discussed that it took six to 12 months
to clear their names from allegedly false accusations. One commenter
stated the process took eight months to clear the respondent's name and
the respondent was banned from school during that time.
Several commenters were fearful of retaliation from
institutions because they believed their school was biased in favor of
complainants. Several commenters stated that their university invented
new charges once the original charges against a respondent fell apart.
Several commenters contended that a broad definition of
sexual harassment led to nonsensical outcomes. One commenter shared
that a high school boy was charged with creating a hostile environment
on the basis of gender after a group of girls accessed his private
social media account and took screen shots of comments that the girls
found offensive. Another commenter described how a dedicated young
professor, who was very popular with students, was forced to take anger
management courses at his own expense and then denied continued
employment because a female college student reported him to the Title
IX office for making a passionate argument in favor of a local issue of
workplace politics. One parent shared a story about their daughter, who
was accused of sexual exploitation on her campus, put through a hearing
process, and given sanctions, for posting (to a private account) a
video clip of herself walking down a common space
[[Page 30059]]
hallway when someone was having loud sex in the background. One
commenter mentioned an incident where a professor was investigated
under Title IX just for disagreeing about another professor's Title IX
investigation.
One respondent, who also identified as a sexual assault
survivor, stated that, before her own personal experience told her
otherwise, she believed that false or wrongful accusations were
unimaginable and rare, but that her personal experience as a respondent
showed her that false or wrongful accusations of sexual misconduct are
much more common than the general population knows or would believe.
Discussion: The Department has thoughtfully and respectfully
considered the personal experiences of the many individuals who have
experienced sexual harassment; been accused of it; have looked to their
schools, colleges, and universities for supportive, fair responses; and
have made the sacrifice in time and mental and emotional effort to
convey their experiences and perspectives to the Department through
public comment. Many of the themes in these comments echo those raised
with the Department in listening sessions with stakeholders, leading to
the Secretary of Education's speech in September 2017 \282\ in which
she emphasized the importance of Title IX and the high stakes of sexual
misconduct. The Secretary observed, after having personally spoken with
survivors, accused students, and school administrators, that ``the
system established by the prior administration has failed too many
students.'' \283\ In the Secretary's words, ``One rape is one too many.
One assault is one too many. One aggressive act of harassment is one
too many. One person denied due process is one too many.'' \284\
---------------------------------------------------------------------------
\282\ Betsy DeVos, U.S. Sec'y of Education, Prepared Remarks on
Title IX Enforcement (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devos-prepared-remarks-title-ix-enforcement.
\283\ Id.
\284\ Id.
---------------------------------------------------------------------------
The Secretary stated that in endeavoring to find a ``better way
forward'' that works for all students, ``non-negotiable principles''
include the right of every survivor to be taken seriously and the right
of every person accused to know that guilt is not predetermined.\285\
It is with those principles in mind that the Department prepared the
NPRM, and because of robust public comment including from individuals
personally affected by these issues, these final regulations even
better reflect those principles.
---------------------------------------------------------------------------
\285\ Id.
---------------------------------------------------------------------------
Changes: In response to the personal stories shared by individuals
affected by sexual harassment, the final regulations ensure that
recipients offer supportive measures to complainants regardless of
participation in a grievance process, and that respondents cannot be
punished until the completion of a grievance process,\286\ in addition
to numerous changes throughout the final regulations discussed in
various sections of this preamble.
---------------------------------------------------------------------------
\286\ Section 106.44(a). As discussed throughout this preamble,
there are exceptions to this premise: Any respondent may be removed
from an education program or activity on an emergency basis under
Sec. 106.44(c); a non-student employee-respondent may be placed on
administrative leave during pendency of a grievance process under
Sec. 106.44(d); an informal resolution process, in which the
parties voluntarily participate, may end in an agreement under which
the respondent agrees to a disciplinary sanction or other adverse
consequence, without the recipient completing a grievance process,
under Sec. 106.45(b)(9).
---------------------------------------------------------------------------
Notice and Comment Rulemaking Rather Than Guidance
Comments: Many commenters, including some who supported the
substance of the proposed rules and others who opposed the substance,
commended the Department for following formal rulemaking procedures to
implement Title IX reforms instead of imposing rules through sub-
regulatory guidance. Many commenters asserted that the notice-and-
comment rulemaking process is critical for gathering informed feedback
from all stakeholders and strengthening the rule of law, and leads to
legal clarity and certainty for institutions and students. Several
commenters stated that because the new regulations will be mandatory,
they will provide a transparent standard that colleges must meet and a
clear standard under which complainants can hold their institutions
accountable.
One commenter described the public comment process as demonstrating
the values of transparency, fairness, and public dialogue, and
appreciated the Department exhibiting those values with this process.
One commenter called notice-and-comment a ``beautiful tool'' which
helps Americans participate in the democracy and freedom our land
offers; another called it an important step that helps the public have
confidence in the Department's rules. One commenter thanked the
Department for taking time to solicit public comment instead of rushing
to impose rules through guidance because public comment leads to rules
that are carefully thought out to ensure that there are not loopholes
or irregularities in the process that is adopted.
Another commenter opined that having codified rules will make it
easier for colleges and universities to comply with Title IX and will
ensure that sexual harassment policies are consistent, making policies
and processes related to Title IX sexual harassment investigations more
transparent to students, faculty and staff, and the public at large.
One commenter, a student conduct practitioner, stated that the
management of Title IX cases has felt like a rollercoaster for many
years, and having clear regulations will be beneficial for the
commenter's profession and the students served by that profession.
Several commenters noted that previous sub-regulatory guidance did
not give interested stakeholders the opportunity to provide feedback.
One commenter opined that although prior administrations acted in good
faith by issuing a series of Title IX guidance documents, prior
administrations missed a critical opportunity by denying stakeholders
the opportunity to publicly comment, resulting in many institutions of
higher education lacking a clear understanding of their legal
obligations; the commenter asserted that public comment reduces
confusion for many administrators, Title IX Coordinators, respondents,
and complainants, and avoids needless litigation.
One commenter stated that by opening this issue up to the public,
the Department has demonstrated sincerity in constructing rules that
fully consider the issues and concerns regularly seen by practitioners
in the field; the commenter thanked the Department for the time and
effort put into clarifying and modifying Title IX regulatory
requirements to be relevant and effective for today's issues.
One commenter asserted that the proposed regulations address the
inherent problem with ``Dear Colleague'' letters not being a
``regulation.'' One commenter argued that no administration should have
the ability to rewrite the boundaries of statutory law with a mere
``Dear Colleague'' letter. One commenter applauded the use of the
rulemaking process for regulating in this area and encouraged the
abandonment of ``regulation through guidance.'' This commenter reasoned
that institutions that comply with regulations are afforded certain
safe harbors from liability as a matter of law, but institutions that
complied with the Department's Title IX guidance were still subjected
to litigation. This commenter asserted that recipients were left in a
``Catch 22'' because Title IX
[[Page 30060]]
participants' attorneys freely second guessed the Department's Title IX
guidance, forcing institutions to choose to follow the Department's
guidance yet subject themselves to liability (or at least the prospect
of an expensive litigation defense) from parties who had their own
theories about discriminatory practices at odds with the Department's
guidance, or else follow a non-discriminatory process different from
the Department's guidance and thereby invite enforcement actions from
OCR under threat of loss of Federal funds.
Another commenter expressed appreciation that the Department seeks
to provide further clarity to a complicated area of civil rights law
and contended that since 2001 the Department has made numerous policy
pronouncements, some of which have been helpful and others that have
caused unnecessary confusion; that the 2001 Guidance was meant to
ensure that cases of sexual violence are treated as cases of sexual
harassment; that the withdrawn 2011 Dear Colleague Letter rightly
addressed the failure of many institutions to address the needs of
reporting parties; but by relying on guidance instead of regulations
the Department's ability to provide technical assistance to
institutions was undermined, and the guidance created further
confusion.
One commenter opposed the proposed rules and opined that changing
the 1975 Title IX regulations is very serious and change should only be
made based on substantial consensus and evidence that any changes are
critically needed and cannot be accomplished by traditionally effective
guidance such as previous letters and helpful Q&As from the Department.
Another commenter opined that under our system of checks and balances,
because Congress passed Title IX, Congress should have to approve a
regulation like this, issued under Title IX.
Discussion: The Department agrees with the many commenters who
acknowledged the importance of prescribing rules for Title IX sexual
harassment only after following notice-and-comment rulemaking
procedures required by the Administrative Procedure Act (``APA''), 5
U.S.C. 701 et seq., instead of relying on non-binding sub-regulatory
guidance. The Department believes that sex discrimination in the form
of sexual harassment is a serious subject that deserves this serious
rulemaking process. Moreover, the Department believes that sub-
regulatory guidance cannot achieve the goal of enforcing Title IX with
respect to sexual harassment because this particular form of sex
discrimination requires a unique response from a recipient, and only
law and regulation can hold recipients accountable. The Department
acknowledges that Congress could address Title IX sexual harassment
through legislation, but Congress has not yet done so. Congress has,
however, granted the Department the authority and direction to
effectuate Title IX's non-discrimination mandate,\287\ and the
Department is persuaded that the problem of sexual harassment and how
recipients respond to it presents a need for the Department to exercise
its authority by issuing these final regulations.\288\
---------------------------------------------------------------------------
\287\ 20 U.S.C. 1682 (``Each Federal department and agency which
is empowered to extend Federal financial assistance to any education
program or activity . . . is authorized and directed to effectuate
the provisions of section 1681 of this title with respect to such
program or activity by issuing rules, regulations, or orders of
general applicability which shall be consistent with achievement of
the objectives of the statute authorizing the financial assistance
in connection with which the action is taken.'').
\288\ The Department notes that the Congress has the opportunity
to review these final regulations under the Congressional Review
Act, 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------
Changes: None.
General Support and Opposition
Comments: Many commenters expressed overall support for the
proposed rules. One commenter stated that the proposed rules are a
reasonable means by which the Department can ensure that colleges and
universities do not engage in unlawful discrimination. One commenter
supported the proposed rules because they clearly address the problem
of sex discrimination, gender bias, and gender stereotyping and
asserted that there is widespread public support for the proposed rules
based on public polling, opinion editorials, and media articles. Some
commenters supported the proposed rules because they protect all
students, including LGBTQ students and male students. One commenter
expressed general support for the proposed rules, but was concerned
that changing the rules still will not help victims who are afraid to
speak up.
Some commenters expressed support for the proposed rules because
they provide clarity and flexibility to institutions of higher
education, and some asserted that the proposed rules appropriately
establish firm boundaries regarding student safety and protections,
while granting institutions flexibility to customize responses based on
an institution's unique attributes. These commenters believed the
proposed rules included a number of improvements that will assist
institutions in advancing these goals. One commenter expressed support
for the alignment between the proposed rules and the Clery Act because
that will help institutions comply with all regulations and ensure a
fair process. One commenter supported the clarity and flexibility in
the proposed rules regarding the standards by which schools will be
judged in implementing Title IX, the circumstances that require a Title
IX response, and the amount of time schools have to resolve a sexual
harassment proceeding. One commenter supported the clear directives in
the proposed rules regarding how investigations must proceed and the
written notice that must be provided to both parties, the opportunity
for schools to use a higher evidentiary standard, the definition of
sexual harassment, and the discussion of supportive measures. Another
commenter characterized the proposed rules as containing several
changes to when and where Title IX applies that offer welcome
clarification to regulated entities by limiting subjective agency
discretion, rolling back previous overreach, and creating certainty by
substituting formal rules for nebulous guidance.
Some commenters expressed support for the proposed rules because
they represent a return to fairness and due process for both parties,
which will benefit everyone. Some of these commenters referenced
personal stories in their comments and expressed their opinions that
many accusations are false and lives are being ruined. Some of these
commenters also criticized withdrawn Department guidance for not
providing adequate due process and for being punitive. One such
commenter also criticized the prior Administration for not meeting with
organizations or groups advocating for due process or fairness to the
accused. Other commenters criticized the status quo system as being
arbitrary and capricious, and biased, and stated that decision-makers
often do not have the professional autonomy to render decisions
incompatible with institutional interests.
Some commenters asserted that the proposed rules would assist
victims by ensuring that they are better informed and able to have
input in the way their case is handled. Some commenters stated that the
proposed rules are important for defining the minimum requirements for
campus due process and will help ensure consistency among schools. One
commenter asserted that the proposed rules take a crucial step toward
addressing systemic bias in favor of complainants who are almost always
[[Page 30061]]
female and against respondents who are almost always male. The
commenter stated that such bias is illustrated by schools that adopt
pro-victim processes while claiming that favoring alleged victims is
not sex discrimination. One commenter contended that men's rights are
under attack and advocacy groups have hijacked Title IX enforcement to
engineer cultural change not authorized by the law, engendering hostile
relationships and mistrust on campuses between men and women, and
contended that current codes of conduct are unconstitutional because of
their disparate impact on men.
A number of commenters expressed general support for the proposed
rules and suggested additional modifications. Some of these commenters
recommended that the Department make the proposed rules retroactive for
students who were disciplined unfairly under the previous rules,
including requiring schools to reopen and reexamine old cases and then
apply these new rules, if requested to do so by a party involved in the
old case. Some commenters stated that colleges should only be
responsible for sexual assault or harassment perpetrated by employees
of the school, and student-on-student sexual misconduct should not be
the school's responsibility because it is outside the scope of Title
IX. One of these commenters stated that it would be even better if the
Department stopped enforcing Title IX. This commenter asserted that
Title IX was passed to ensure that schools do not discriminate against
females and it has achieved that objective, and the Department has the
right to adopt the minority view in Davis,\289\ that schools should not
be held accountable for student-on-student sexual harassment.
---------------------------------------------------------------------------
\289\ Commenter cited: Davis v. Monroe Cnty. Bd. of Educ., 526
U.S. 629, 661-62 (1999) (Kennedy, J., dissenting) (``Discrimination
by one student against another therefore cannot be `under' the
school's program or activity as required by Title IX. The majority's
imposition of liability for peer sexual harassment thus conflicts
with the most natural interpretation of Title IX's `under a program
or activity' limitation on school liability.'') (internal citations
omitted).
---------------------------------------------------------------------------
One commenter expressed concern that some education systems are not
covered by Title IX even though they receive Federal funding; this
commenter specifically referenced fraternities and sororities and
stated that this lack of Title IX coverage of Greek life should be
reevaluated. One commenter suggested that the Department establish a
procedure for the accused to file a complaint with the U.S. Secretary
of Education. This commenter also suggested that there be a review
board for Title IX accusations, the members of which are detached from
the administration of the school. One commenter expressed concern that
schools may not comply with the proposed rules and argued that the only
lever that will work is a credible threat to cut off Federal funding
for lack of compliance. One commenter expressed concern about funds
from the U.S. Department of Justice's Office on Violence Against Women
(OVW), which the commenter claimed funds studies that are being written
only by those who support victims' rights; the commenter asserted that
OVW funds are being used by campus Title IX offices to investigate and
adjudicate allegations of campus sexual assault. This commenter
recommended that the Department specify that OVW-funded programs must
comply with the new Title IX regulations. One commenter expressed
concern over the costs students faced to defend themselves in a Title
IX process under the previous rules and suggested that OCR may want to
undertake a study on to what extent OCR's previous policies resulted in
a serious adverse impact on lower- and moderate-income students and/or
students of color since these students likely had fewer resources to
pay for their defense.
Discussion: The Department appreciates commenters' variety of
reasons expressing support for the Department's approach. The
Department agrees that the final regulations will promote protection of
all students and employees from sex discrimination, provide clarity as
to what Title IX requires of schools, colleges, and universities, help
align Title IX and Clery Act obligations, provide consistency while
leaving flexibility for recipients, benefit all parties to a grievance
process by focusing on a fair, impartial process, and require
recipients to offer supportive measures to complainants as part of a
response to sexual harassment.
The Department understands commenters' desire to require recipients
who have previously conducted grievance processes in a way that the
commenters view as unfair to reopen the determinations reached under
such processes. However, the Department will not enforce these final
regulations retroactively.\290\
---------------------------------------------------------------------------
\290\ Federal agencies authorized by statute to promulgate rules
may only create rules with retroactive effect where the authorizing
statute has expressly granted such authority. See 5 U.S.C. 551
(referring to a ``rule'' as agency action with ``future effects'' in
the Administrative Procedure Act); Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988) (``Retroactivity is not favored in the law.
Thus, congressional enactments and administrative rules will not be
construed to have retroactive effect unless their language requires
this result.'').
---------------------------------------------------------------------------
The Department will continue to recognize, as has the Supreme
Court, that sexual harassment, including peer-on-peer sexual
harassment, is a form of sex discrimination prohibited under Title IX,
and will continue vigorously to enforce Title IX with respect to all
forms of sex discrimination.
Commenters questioning whether specific organizations receiving
Federal financial assistance (including programs funded through OVW)
are covered by Title IX may direct inquiries to the organization's
Title IX Coordinator or to the Assistant Secretary, or both, pursuant
to Sec. 106.8(b)(1). Complaints alleging that a recipient has failed
to comply with Title IX will continue to be evaluated and investigated
by the Department. Section 106.45(b)(8) requires appeals from
determinations regarding responsibility to be decided by decision-
makers who are free from conflicts of interest. Recipients are subject
to Title IX obligations, including these final regulations, with
respect to all of the recipient's education programs or activities;
there is no exemption from Title IX coverage for fraternities and
sororities, and in fact these final regulations specify in Sec.
106.44(a) that the education program or activity of a postsecondary
institution includes any building owned or controlled by a student
organization officially recognized by the postsecondary institution.
The Department appreciates commenters' concerns about the impact of
Title IX grievance procedures implemented under withdrawn Department
guidance or under status quo policies that commenters believed were
unfair. While the Department did not commission a formal study into the
impact of previous guidance, the Department conducted extensive
stakeholder outreach prior to issuing the proposed rules and has
received extensive input through public comment on the NPRM, and
believes that the final regulations will promote Title IX enforcement
more aligned with the scope and purpose of Title IX (while respecting
every person's constitutional due process rights and right to
fundamental fairness) than the Department's guidance has achieved.
Changes: None.
Comments: Numerous commenters, including physicians, parents,
students, State coalitions against rape, advocacy groups, sexual
assault survivors, ministers, mental health therapists, social workers,
and employees at educational institutions expressed general opposition
to the proposed rules. A number of commenters emphasized the critical
progress spurred
[[Page 30062]]
on by Title IX. Some commenters emphasized how Title IX has broken down
barriers and improved educational access for millions of students for
decades, especially for girls and women, including increasing access to
higher education, promoting gender equity in athletics, and protecting
against sexual harassment. Many of these commenters expressed concern
that the proposed rules would undermine this progress towards sex
equality and combating sexual harassment when protections are still
greatly needed. Some argued that the proposed rules would weaken
protections for young women at the very time when the #MeToo movement
has shown the pervasiveness of sexual harassment and how much
protections are still needed. Other commenters asserted that women and
girls still depend on Title IX to ensure equal access in all aspects of
education.
A few commenters asserted that the proposed rules violate Christian
or Jewish teachings or expressed the view that the proposed rules are
immoral, unethical, or regressive. Commenters described the proposed
rules using a variety of terms, such as disgusting, unfair, indecent,
dishonorable, un-Christian, lacking compassion, callous, sickening,
morally bankrupt, cruel, regressive, dangerous, or misguided. Other
commenters expressed concern that the proposed rules would ``turn back
the clock'' to a time when schools ignored sexual assault, excused male
misbehavior as ``boys will be boys,'' and treated sexual harassment as
acceptable. Many commenters asserted that the prior Administration's
protections for victims of sexual assault should not be rolled back.
Some commenters expressed the belief that the proposed rules are
inconsistent with the purpose and intent of Title IX because they would
allow unfair treatment of women, force women to choose between their
safety and education, increase the cultural tolerance of sexual assault
and predatory behaviors, make it harder for young women to complete
their education without suffering the harms of sex-based harassment,
and obstruct Title IX's purpose to protect and empower students
experiencing sex discrimination. A few commenters expressed concern
that the proposed rules would harm graduate students, who suffer sexual
harassment at high rates.
Some commenters expressed the belief that the proposed rules are
contrary to sex equality. Commenters asserted that Title IX protects
all people from sexual assault, benefits both women and men, and that
all students deserve equality and protection from sex discrimination
and sexual harassment. Commenters expressed belief that: Sexism hurts
everyone, including men; men are far more likely to be sexually
assaulted than falsely accused of it; both men and women are victims of
rape and deserve protection; men on campus are not under attack and
need protection as victims more than as falsely accused respondents;
and the proposed rules were written to protect males or to protect
males more than females, but should protect male and female students
equally. Other commenters characterized the proposed rules as part of a
broader effort by this Administration to dismantle protections for
women and other marginalized groups.
One commenter argued that the Department should spend more time
interviewing victims of sexual assault than worrying about whether the
accused's life will be ruined. Other commenters stated that Title IX
should be protected and left alone. One commenter stated that any
legislation that limits the rights of the victim in favor of the
accused should be scrutinized for intent. One commenter stated that the
proposed rules only cater to the Department and its financial bottom
line. One commenter supported protecting Title IX and giving girls'
sports a future. One commenter asserted that we are losing female STEM
(science, technology, engineering, math) leaders that the Nation needs
right now.
One commenter urged the Department to create rules that protect
survivors, prevent violence and sexual harassment and punish offenders,
teach about boundaries and sexuality, and provide counseling and mental
health resources to students. One commenter suggested that the
Department should use more resources to educate about sexual consent
communication, monitor drinking, and provide sexual education because
this will protect both male and female students. Some commenters
suggested alternate practices to the approaches advanced in the
proposed rules, such as: behavioral therapy for offenders and bystander
intervention training; best practices for supporting survivors in
schools; community-based restorative justice programs; and independent
State investigatory bodies independent of school systems with trained
investigators. Some commenters expressed concern that the proposed
rules ignore efforts to prevent sexual harassment or to address its
root causes.
Discussion: The Department appreciates that many commenters with a
range of personal and professional experiences expressed opposition to
the proposed regulations. The Department agrees that Title IX has
improved educational access for millions of students since its
enactment decades ago and believes that these final regulations
continue our national effort to make Title IX's non-discrimination
mandate a meaningful reality for all students.
The Department notes that although some commenters formed opinions
of the proposed rules based on Christian or Jewish teachings or other
religious views, the Department does not evaluate legal or policy
approaches on that basis. The Department believes that the final
regulations mark progress under Title IX, not regression, by treating
sexual harassment under Title IX as a matter deserving of legally
binding regulatory requirements for when and how recipients must
respond. In no way do the final regulations permit recipients to ``turn
back the clock'' to ignore sexual assault or excuse sexual harassment
as ``boys will be boys'' behavior; rather, the final regulations
obligate recipients to respond promptly and supportively to
complainants and provide a grievance process fair to both parties
before determining remedies and disciplinary sanctions.
The Department disagrees that changing the status quo approach to
Title IX will negatively impact women, children, students of color, or
LGBTQ individuals, because the final regulations define the scope of
Title IX and recipients' legal obligations under Title IX without
regard to the race, ethnicity, sexual orientation, age, or other
characteristic of a person.
The Department is committed to the rule of law and robust
enforcement of Title IX's non-discrimination mandate for the benefit of
individuals in protected classes designated by Congress in Federal
civil rights laws such as Title IX. Contrary to a commenter's
assertion, the Department is acutely concerned about the way that
sexual harassment--and recipients' responses to it--have ruined lives
and deprived students of educational opportunities. The Department aims
through these final regulations to create legally enforceable
requirements for the benefit of all persons participating in education
programs or activities, including graduate students, for whom
commenters asserted that sexual harassment is especially prevalent.
The Department understands that some commenters opposed the
proposed regulations because they want Title IX to be protected and
left alone. For reasons explained in the ``Notice and Comment
Rulemaking Rather Than
[[Page 30063]]
Guidance'' and ``Adoption and Adaption of the Supreme Court's Framework
to Address Sexual Harassment'' sections of this preamble, the
Department believes that the final regulations create a framework for
responding to Title IX sexual harassment that effectuates the Title IX
non-discrimination mandate better than the status quo under the
Department's guidance documents.
The Department disagrees that the proposed regulations in any
manner limit the rights of alleged victims in favor of the accused;
rather, for reasons explained in the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble, the
prescribed grievance process gives complainants and respondents equally
strong, clear procedural rights during a grievance process.\291\ Those
procedural rights reflect the seriousness of sexual harassment, the
life-altering consequences that flow from a determination regarding
responsibility, and the need for each determination to be factually
accurate. The Department's intent is to promulgate Title IX regulations
that further the dual purposes of Title IX: preventing Federal funds
from supporting discriminatory practices, and providing individuals
with protections against discriminatory practices. The final
regulations in no way cater to the Department or the Department's
financial bottom line and the Department will enforce the final
regulations vigorously to protect the civil rights of students and
employees. While the proposed regulations mainly address sex
discrimination in the form of sexual harassment, the Department will
also continue to enforce Title IX in non-sexual harassment contexts
including athletics and equal access to areas of study such as STEM
fields.
---------------------------------------------------------------------------
\291\ See also the ``Role of Due Process in the Grievance
Process'' section of this preamble.
---------------------------------------------------------------------------
The Department believes that the final regulations protect
survivors of sexual violence by requiring recipients to respond
promptly to complainants in a non-deliberately indifferent manner with
or without the complainant's participation in a grievance process,
including offering supportive measures to complainants, and requiring
remedies for complainants when respondents are found responsible. For
reasons discussed in the ``Deliberate Indifference'' subsection of the
``Adoption and Adaption of the Supreme Court's Framework to Address
Sexual Harassment'' section of this preamble, the Department does not
require or prescribe disciplinary sanctions and leaves those decisions
to the discretion of recipients, but recipients must effectively
implement remedies designed to restore or preserve a complainant's
equal educational access if a respondent is found responsible for
sexual harassment following a grievance process that complies with
Sec. 106.45.
The Department understands commenters' beliefs that the Department
should create rules that monitor drinking, teach about interpersonal
boundaries, sexuality, bystander intervention, and sexual consent
communication, and provide counseling and mental health resources to
students. The final regulations do not preclude recipients from
offering counseling and mental health services, and while the
Department does not mandate educational curricula, nothing in the final
regulations impedes recipients' discretion to provide students (or
employees) with educational information. While these final regulations
are concerned with setting forth requirements for recipients' responses
to sexual harassment, the Department agrees with commenters that
educators, experts, students, and employees should also endeavor to
prevent sexual harassment from occurring in the first place. The 2001
Guidance took a similar position on prevention of sexual
harassment.\292\
---------------------------------------------------------------------------
\292\ The 2001 Guidance under the heading ``Prevention'' states:
``Further, training for administrators, teachers, and staff and age-
appropriate classroom information for students can help to ensure
that they understand what types of conduct can cause sexual
harassment and that they know how to respond.'' 2001 Guidance at 19.
---------------------------------------------------------------------------
The Department appreciates and has considered the many alternative
approaches proposed by commenters, including that the Department should
require behavioral therapy for offenders, establish best practices for
supporting survivors, require restorative justice programs, require
that State investigatory bodies independent of school systems conduct
Title IX investigations, and address the root causes of sexual
harassment. The Department does not require particular sanctions--or
therapeutic interventions--for respondents who are found responsible
for sexual harassment, and leaves those decisions in the sound
discretion of State and local educators. Under the final regulations,
recipients and States remain free to consider alternate investigation
and adjudication models, including regional centers that outsource the
investigation and adjudication responsibilities of recipients to highly
trained, interdisciplinary experts. Some regional center models
proposed by commenters and by Title IX experts rely on recipients to
form voluntary cooperative organizations to accomplish this purpose,
while other, similar models involve independent, professional
investigators and adjudicators who operate under the auspices of State
governments. The Department will offer technical assistance to
recipients with respect to pursuing a regional center model for meeting
obligations to investigate and adjudicate sexual harassment allegations
under Title IX.
Similarly, recipients remain free to adopt best practices for
supporting survivors and standards of competence for conducting
impartial grievance processes, while meeting obligations imposed under
the final regulations. The final regulations address recipients'
required responses to sexual harassment incidents; identifying the root
causes and reducing the prevalence of sexual harassment in our Nation's
schools remains within the province of schools, colleges, universities,
advocates, and experts.
Changes: None.
Comments: Some commenters contended that the proposed rules would
have a negative impact on specific populations, including women,
persons of color, children, and LGBTQ individuals, and supported
keeping Title IX as-is. One commenter believed that many people hold an
inaccurate stereotype that sexual assault does not happen at all-
women's colleges and felt that the proposed rules would make it harder
for students in such environments to get justice or to feel safe in
their own dorms.
Some commenters were concerned about the negative impact of the
proposed rules on victims and the message the proposed rules send to
the public. Commenters asserted that the proposed rules perpetuate the
acceptance of sexual assault and harassment and will result in people
not believing victims despite how difficult it is to come forward.
Commenters expressed concern that the proposed rules will place an
additional burden on victims and make it less likely victims will come
forward, allowing perpetrators to go unpunished. One commenter asserted
that the proposed rules signal to the public and potential sexual
harassers and assaulters that their actions will be excused by the
Department and not sufficiently investigated by their campuses. Some
commenters contended that the proposed rules, if enacted, would:
Protect abusers and those accused of assault; insulate harassers from
punishment or make them feel like they
[[Page 30064]]
can sexually harass others without consequence; give boys and young men
who behave badly or have a sense of entitlement a free pass when it
comes to their actions against girls, rather than teaching men to
respect women; make it easier for harassers to get away with it rather
than ensuring accountability; allow rapists to escape consequences;
continue a culture of impunity; strengthen rape culture; perpetuate
systemic gender oppression; undermine efforts to ensure young people
understand consent; disempower survivors and reinforce myths that they
are at fault for being assaulted; prevent deterrence of sexual abuse;
and be designed to protect rich and privileged boys.
Many commenters expressed general concern that the proposed rules
would make schools less safe for all students, including LGBTQ
students. Commenters identified an array of harms they believed the
proposed rules would impose on victims. Commenters argued the proposed
rules would: Make it less likely victims will be protected, believed,
or supported; make it harder for survivors to report their sexual
assaults, to get their cases heard, to prove their claims, and to
receive justice, despite a process that is already difficult, painful,
convoluted, confusing, and lacking in resources, and in which victims
fear coming forward; attack survivors in ways that make it harder for
them to get help; restrict their rights and harm them academically and
psychologically (e.g., dropping out of school, trauma, post-traumatic
stress disorder, institutional betrayal, suicide). Commenters argued
that the proposed rules would: discourage survivors from coming forward
and subject them to retraumatizing experiences in order to seek
redress; make schools dangerous by making it easier for perpetrators to
get away with heinous acts of gender-based violence; encourage sexually
predatory behavior; fail to prioritize the safety of survivors and
students; make students feel less safe at school and on campus;
jeopardize students' well-being; increase the helplessness survivors
feel; and leave victims without recourse. Commenters argued that the
proposed rules: Put victims at greater risk of retaliation by schools
eager to hide misconduct from the public; treat some people as less
than others based on gender; signal that survivors do not matter and
that sexual assault can be ignored; hurt real women or show disdain for
women and girls; and deny victims due process. Commenters believed that
the proposed rules were antithetical to bodily autonomy and
reproductive justice values, fail to advance the goal of stopping
sexual violence, and shift the costs and burdens to those already
suffering from trauma.
Discussion: The Department disagrees that the proposed regulations
will negatively impact women, people of color, LGBTQ individuals, or
any other population. The proposed regulations are designed to provide
supportive measures for all complainants and remedies for a complainant
when a respondent is found responsible for sexual harassment, and the
Department believes that, contrary to commenters' assertions, the final
regulations will help protect against sex discrimination regardless of
a person's race or ethnicity, age, sexual orientation, or gender
identity and will give complainants greater autonomy to receive the
kind of school-level response to a reported incident of sexual
harassment that will best help the complainant overcome the effects of
sexual harassment and retain educational access. The Department notes
that the final regulations do not differentiate between sexual assault
occurring at an all-women's college and sexual assault occurring at a
college enrolling women and men.
The Department believes that students, employees, recipients, and
the public will benefit from the clarity, consistency, and
predictability of legally enforceable rules for responding to sexual
harassment set forth in the final regulations, and believes that the
final regulations will communicate and incentivize these goals,
contrary to some commenters' assertions that the final regulations will
communicate negative messages to the public. The final regulations,
including the Sec. 106.45 grievance process, are motivated by fair
treatment of both parties in order to avoid sex discrimination in the
way either party is treated and to reach reliable determinations so
that victims receive remedies that restore or preserve access to
education after suffering sex discrimination in the form of sexual
harassment. The Department recognizes that anyone can be a victim, and
anyone can be a perpetrator, of sexual harassment, and that each
individual deserves a fair process designed to accurately resolve the
truth of allegations.
The Department disagrees that the proposed regulations perpetuate
acceptance of sexual harassment, rape culture, or systemic sex
inequality; continue a culture of impunity; will result in people not
believing victims; will disempower survivors or increase victim
blaming, are designed to protect rich, privileged boys; or will make
schools less safe. The Department recognizes that reporting a sexual
harassment incident is difficult for many complainants for a variety of
reasons, including fear of being blamed, not believed, or retaliated
against, and fear that the authorities to whom an incident is reported
will ignore the situation or fail or refuse to respond in a meaningful
way, perhaps due to negative stereotypes that make women feel shamed in
the aftermath of sexual violence. The final regulations require
recipients to respond promptly to every complainant in a manner that is
not clearly unreasonable in light of the known circumstances, including
by offering supportive measures (irrespective of whether a formal
complaint is filed) and explaining to the complainant options for
filing a formal complaint. The final regulations impose duties on
recipients and their Title IX personnel to maintain impartiality and
avoid bias and conflicts of interest, so that no complainant or
respondent is automatically believed or not believed. Complainants must
be offered supportive measures, and respondents may receive supportive
measures, whether or not a formal complaint has been filed or a
determination regarding responsibility has been made.
The Department is sensitive to the effects of trauma on sexual
harassment victims and appreciates that choosing to make a report, file
a formal complaint, communicate with a Title IX Coordinator to arrange
supportive measures, or participate in a grievance process are often
difficult steps to navigate in the wake of victimization. The
Department disagrees, however, that the final regulations place
additional burdens on victims or make it more difficult for victims to
come forward. Rather, the final regulations place burdens on recipients
to promptly respond to a complainant in a non-deliberately indifferent
manner. The Department disagrees that the final regulations will excuse
sexual harassment or result in insufficient investigations of sexual
harassment allegations. Section 106.44(a) obligates recipients to
respond by offering supportive measures to complainants, and Sec.
106.45 obligates recipients to conduct investigations and provide
remedies to complainants when respondents are found responsible. Thus,
a recipient is not permitted under the final regulations to excuse or
ignore sexual harassment, nor to avoid investigating where a formal
complaint is filed.
Changes: We have revised Sec. 106.44(a) to state that as part of a
recipient's
[[Page 30065]]
response to a complainant, the recipient must offer the complainant
supportive measures, irrespective of whether a complainant files a
formal complaint, and the Title IX Coordinator must contact the
complainant to discuss availability of supportive measures, consider
the complainant's wishes regarding supportive measures, and explain to
the complainant the process for filing a formal complaint.
Comments: One commenter asked what statistics the proposed rules
were based on and stated that the proposed rules seem to not have been
thought through. A number of commenters expressed concerns that the
proposed rules are not based on sufficient facts, evidence, or
research, lack adequate justification, or demonstrate a lack of
competence, knowledge, background, and awareness. A number of these
commenters suggested gathering further evidence, best practices, and
input from students, educators, administrators, advocates, survivors,
and others. One commenter stated that the way to make American life and
society safer was to address domestic violence on campuses.
Some commenters expressed concerns that the proposed rules would
reduce reporting and investigations of sexual assault. Some commenters
argued that many elements of the proposed rules are based on the
misleading claim that those accused of sexual misconduct should be
protected against false accusations even though research shows that
false accusations are rare. Several commenters contended that women are
more likely to be sexually assaulted than a man is to be falsely
accused and similarly, a man is more likely to be sexually assaulted
than to be falsely accused of sexual assault.
One commenter stated that the proposed rules would create a two-
tiered system to deal with sexual assault cases and would put undue
financial burden on the marginalized to pay for representation in an
already flawed reporting system. One commenter stated that Title IX
should protect all female students from rape, and they should be
believed until facts prove them wrong.
Some commenters expressed opposition because the proposed rules
protect institutions. Some of these commenters contended that the
proposed rules would allow schools to avoid dealing with cases of
sexual misconduct and abdicate their responsibility to take accusations
seriously. One of these commenters argued it was the Department's job
to protect the civil rights of students, not to help shield schools
from accountability. One commenter argued that the proposed regulations
had been pushed for by education lobbyists. Some commenters expressed
concerns about reducing schools' Title IX obligations noting that
schools have a long history of not adequately addressing sexual
misconduct, have reputational, financial, and other incentives not to
fully confront such behavior, and need to be kept accountable under
Title IX. A few commenters felt that the proposed regulations would
give school officials too much discretion and that the proposed
regulations would result in inconsistencies among institutions in
handling cases and in the support provided to students.
A number of commenters felt that the proposed rules prioritize the
interests of schools, by narrowing their liability and saving them
money, over protections for students. One commenter stated that
universities that discriminate on the basis of sex should get no
Federal money. One commenter was concerned that the proposed rules
would create an environment in which institutions will refuse to take
responsibility to avoid the financial aspect of having to make
restitution rather than focusing on the well-being of victims. One
commenter contended that the proposed rules enable school
administrators to sexually abuse students by reducing a school's
current Title IX responsibilities. One commenter stated that the
proposed rules would hurt victims and perpetrators and leave
institutions vulnerable to lawsuits.
Other commenters expressed a belief that the changes may violate
constitutional safeguards, such as the rights to equal protection and
to life and liberty. Some commenters believed that the proposed rules
are in line with regressive laws regarding rape, sexual assault, and
women's rights in less democratic countries. A few commenters felt that
the proposed rules would signal an increased tolerance internationally
for sexual violence, cause international students to avoid U.S.
colleges where sexual assault is more prevalent, or compromise the
country's ability to compete internationally in STEM fields where U.S.
women are reluctant to focus given the prevalence of sexual harassment.
Discussion: The final regulations reflect the Department's legal
and policy decisions of how to best effectuate the non-discrimination
mandate of Title IX, after extensive internal deliberation, stakeholder
engagement, and public comment. The Department is aware of statistics
that describe the prevalence of sexual harassment in educational
environments and appreciates the many commenters who directed the
Department's attention to such statistics.\293\ The Department believes
that these final regulations are needed precisely because statistics
support the numerous personal accounts the Department has heard and
that commenters have described regarding the problem of sexual
harassment. The perspectives of survivors of sexual violence have been
prominent in the public comments considered by the Department
throughout the process of promulgating these final regulations. In
response to commenters concerned about addressing domestic violence,
the Department has revised the definition of ``sexual harassment'' in
Sec. 106.30 to expressly include domestic violence (and dating
violence, and stalking) as those offenses are defined under VAWA,
amending the Clery Act.
---------------------------------------------------------------------------
\293\ Many such statistics are referenced in the ``Commonly
Cited Sources'' and ``Data--Overview'' subsections of this ``General
Support and Opposition'' section of the preamble.
---------------------------------------------------------------------------
The Department does not believe the final regulations will reduce
reporting or investigations of conduct that falls under the purview of
Title IX. Section 106.44(a) requires recipients to respond supportively
to complainants regardless of whether a complainant also wants to file
a formal complaint. When a formal complaint is filed, the Sec. 106.45
grievance process prescribes a consistent framework, fair to both
complainants and respondents, with respect to the investigation and
adjudication of Title IX sexual harassment allegations. Thus, both
complainants and respondents receive due process protections, and where
a Sec. 106.45 grievance process concludes with a determination that a
respondent is responsible, the complainant is entitled to remedies.
Whether false accusations of sexual harassment occur frequently or
infrequently, the Sec. 106.45 grievance process requires allegations
to be investigated and adjudicated impartially, without bias, based on
objective evaluation of the evidence relevant to each situation.
As to all sexual harassment covered by Title IX, including sexual
assault, the final regulations obligate recipients to respond and
prescribe a consistent, predictable grievance process for resolution of
formal complaints. Nothing in the final regulations precludes a
recipient from applying the Sec. 106.45 grievance process to address
sexual assaults that the recipient is not required to address under
Title IX. The Department disagrees that the proposed regulations put
undue financial burden on marginalized individuals to pay for
representation. Contrary to the commenter's assertions,
[[Page 30066]]
Sec. 106.45(b)(5)(iv) gives each party the right to choose an advisor
to assist the party, but does not require that the advisor be an
attorney (or other advisor who may charge the party a fee for their
representation).\294\
---------------------------------------------------------------------------
\294\ The Department also notes that where cross-examination is
required at a live hearing (for postsecondary institutions), the
cross-examination must be conducted by an advisor (parties must
never personally question each other), and if a party does not have
their own advisor of choice at the live hearing, the postsecondary
institution must provide that party (at no fee or charge) with an
advisor of the recipient's choice, for the purpose of conducting
cross-examination, and such a provided advisor may be, but does not
need to be, an attorney. Sec. 106.45(b)(6)(i).
---------------------------------------------------------------------------
The Department believes that schools, colleges, and universities
desire to maintain a safe environment and that many have applied
substantial effort and resources to address sexual harassment in
particular; however, the Department acknowledges that reputational and
financial interests have also influenced recipients' approaches to
sexual violence problems. Contrary to some commenters' assertions, the
proposed regulations neither ``protect institutions'' nor shield them
from liability, but rather impose clear legal obligations on recipients
to protect students' civil rights. The Department disagrees that the
proposed regulations give recipients too much discretion; instead, the
Department believes that the deliberate indifference standard requiring
a response that is not clearly unreasonable in the light of known
circumstances, combined with particular requirements for a prompt
response that includes offering supportive measures to complainants,
strikes an appropriate balance between requiring all recipients to
respond meaningfully to each report, while permitting recipients
sufficient flexibility and discretion to address the unique needs of
each complainant.
While the Department is required to estimate costs and cost savings
associated with the final regulations, cost considerations have not
driven the Department's legal and policy approach as to how best to
ensure that the benefits of Title IX extend to all persons
participating in education programs or activities. With respect to
sexual harassment covered by Title IX, the final regulations require
recipients to take accusations seriously and deal with cases of sexual
misconduct, not avoid them. Regardless of whether a recipient wishes to
dodge responsibility (to avoid reputational, financial, or other
perceived institutional harms), recipients are obligated to comply with
all Title IX regulations and the Department will vigorously enforce
Title IX obligations. The Department disagrees with a commenter's
contention that the final regulations enable school administrators to
sexually abuse students; Sec. 106.30 defines Title IX sexual
harassment to include quid pro quo harassment by any recipient's
employee, and includes sexual assault perpetrated by any individual
whether the perpetrator is an employee or not. Indeed, if a school
administrator engages in any conduct on the basis of sex that is
described in Sec. 106.30, then the recipient must respond promptly
whenever any elementary or secondary school employee (or any school,
college, or university Title IX Coordinator) has notice of the conduct.
The Department believes that the framework in these final
regulations for responding to Title IX sexual harassment effectuates
the non-discrimination mandate of Title IX for the protection and
benefit of all persons in recipients' education programs and activities
and disagrees that the final regulations leave institutions vulnerable
to lawsuits. A judicially implied right of private action exists under
Title IX, and other Federal and State laws permit lawsuits against
schools, but the Department's charge and focus is to administratively
enforce Title IX, not to address the potential for lawsuits against
institutions. However, by adapting for administrative purposes the
general framework used by the Supreme Court for addressing Title IX
sexual harassment (while adapting that framework for administrative
enforcement) and prescribing a grievance process rooted in due process
principles for resolving allegations, the Department believes that
these final regulations may have the ancillary benefit of decreasing
litigation.
The Department notes that Sec. 106.6(d) expressly addresses the
intersection between the final regulations and constitutional rights,
stating that nothing in these final regulations requires a recipient to
restrict rights guaranteed under the U.S. Constitution. This would
include the rights to equal protection and substantive due process
referenced by commenters concerned that the proposed rules violate
those constitutional safeguards. The Department does not rely on the
laws regarding rape and women's rights in other countries to inform the
Department's Title IX regulations, but believes that Title IX's
guarantee of non-discrimination on the basis of sex in education
programs or activities represents a powerful statement of the
importance of sex equality in the United States, and that these final
regulations effectuate and advance Title IX's non-discrimination
mandate by recognizing for the first time in the Department's
regulations sexual harassment as a form of sex discrimination.
Changes: We have revised the definition of ``sexual harassment'' in
Sec. 106.30 to include dating violence, domestic violence, and
stalking as those offenses are defined under VAWA, amending the Clery
Act. We have revised Sec. 106.44(a) to require recipients to offer
supportive measures to each complainant.
Comments: A few commenters argued that any use of personal blogs as
a citation or source in Federal regulation is inappropriate and that
using a blog as a source in a footnote in the NPRM (for example, a blog
maintained by K.C. Johnson, co-author of the book Campus Rape Frenzy),
is inappropriate and unprofessional; one commenter contested the
accuracy of Professor Johnson's compilation on that blog of information
regarding lawsuits filed against institutions relating to Title IX
campus proceedings. Commenters argued that although people's personal
experiences can be highly valuable, using a blog as a citation in
rulemaking does not reflect evidence-based practice. Similarly, a few
commenters criticized the Department's footnote reference in the NPRM
to Laura Kipnis's book Unwanted Advances as, among things, evidence
that the Department's sources listed in the NPRM suggest undue
engagement with materials that promote pernicious gender stereotypes.
A few commenters referenced media reports of statements made by
President Trump, Secretary DeVos, and former Acting Assistant Secretary
for Civil Rights Candice Jackson as indications that the Department
approached the NPRM with a motive of gender bias against women. A few
commenters asserted that the Department's footnote citations in the
NPRM suggest systematic inattention to the intersection of race and
gender relating to Title IX and urged the Department to adopt an
intersectional approach because failure to pay attention to how gender
interacts with other social identities will result in a failure to
effectively meet the Department's goal that all students are able to
pursue their educations in federally-funded institutions free from sex
discrimination.
Discussion: The source citations in the NPRM demonstrate a range of
perspectives about Title IX sexual harassment and proceedings including
views both supportive and critical of the status quo approach to campus
sexual harassment, all of which the Department considered in preparing
the NPRM. The
[[Page 30067]]
Department believes that whether commenters are correct or not in
characterizing certain NPRM footnoted references as personal opinions
instead of case studies, the views expressed in the NPRM references
warranted consideration. Similarly, the Department has reviewed and
considered the views, perspectives, experiences, opinions, information,
analyses, and data expressed in public comments, and the wide range of
feedback is beneficial as the Department considers the most appropriate
ways in which to regulate recipients' responses to sexual harassment
under Title IX in schools, colleges, and universities.
The Department maintains that no reported statement on the part of
the President, Secretary, or former Acting Assistant Secretary for
Civil Rights suggests bias against women. The Department proceeded with
the NPRM, and the final regulations, motivated by the commitment to the
``non-negotiable principles'' of Title IX regulations that Secretary
DeVos stated in a speech about Title IX: The right of every survivor to
be taken seriously and the right of every person accused to know that
guilt is not predetermined.\295\
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\295\ Betsy DeVos, U.S. Sec'y of Education, Prepared Remarks on
Title IX Enforcement (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devos-prepared-remarks-title-ix-enforcement.
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The Department appreciates that some commenters made assertions
that the impact of sexual harassment, and the impact of lack of due
process procedures, may differ across demographic groups based on sex,
race, and the intersection of sex and race (as well as other
characteristics such as disability status, sexual orientation, and
gender identity). The Department emphasizes that these final
regulations apply to all individuals reporting, or accused of, Title IX
sexual harassment, irrespective of race or other demographic
characteristics. The Department believes that these final regulations
provide the best balance to supportively, fairly, and accurately
address allegations of sexual harassment for the benefit of every
individual.
Changes: None.
Comments: Some commenters argued that the proposed regulations will
cause social discord and make campuses unsafe because survivors will
underreport and rates of sexual harassment will increase. Many
commenters expressed concern that the proposed rules will discourage or
have a chilling effect on reporting sexual harassment and violence,
that reporting rates are already low, that the proposed rules would
make things worse, and that schools could use the proposed rules to
discourage students from reporting against faculty or staff in order to
maintain the school's reputation. Commenters contended that this will
adversely impact the ability of victims, especially from marginalized
populations, to access their education.
Discussion: The Department disagrees that these final regulations
will cause social discord or make campuses unsafe, because a
predictable, consistent set of rules for when and how a recipient must
respond to sexual harassment increases the likelihood that students and
employees know that sexual harassment allegations will be responded to
promptly, supportively, and fairly. The Department acknowledges data
showing that reporting rates are lower than prevalence rates with
respect to sexual harassment, including sexual violence, but disagrees
that the final regulations will discourage or chill reporting. In
response to commenters' concerns that students need greater clarity and
ease of reporting, the final regulations provide that a report to any
Title IX Coordinator, or any elementary or secondary school employee,
will obligate the school to respond,\296\ require recipients to
prominently display the contact information for the Title IX
Coordinator on recipients' websites,\297\ and specify that any person
(i.e., the complainant or any third party) may report sexual harassment
by using the Title IX Coordinator's listed contact information, and
that a report may be made at any time (including during non-business
hours) by using the listed telephone number or email address (or by
mail to the listed office address).\298\ Recipients must respond by
offering the complainant supportive measures, regardless of whether the
complainant also files a formal complaint or otherwise participates in
a grievance process.\299\ Such supportive measures are designed
precisely to help complainants preserve equal access to their
education.
---------------------------------------------------------------------------
\296\ Section 106.30 (defining ``actual knowledge'').
\297\ Section 106.8(b).
\298\ Section 106.8(a).
\299\ Section 106.44(a).
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Changes: The Department has expanded the definition of ``actual
knowledge'' in Sec. 106.30 to include reports to any elementary or
secondary school employee. We have revised Sec. 106.8 to require
recipients to prominently display on recipient websites the contact
information for the recipient's Title IX Coordinator, and to state that
any person may report sexual harassment by using the Title IX
Coordinator's listed contact information, and that reports may be made
at any time (including during non-business hours) by using the
telephone number or email address, or by mailing to the office address,
listed for the Title IX Coordinator. We have revised Sec. 106.44(a) to
require recipients to offer supportive measures to every complainant
whether or not a formal complaint is filed.
Comments: Many commenters stated that student survivors often rely
on their academic institutions to allow them some justice and
protection from their assailant and that the provisions provided by
Title IX, as enforced under the Department's withdrawn 2011 Dear
Colleague Letter and withdrawn 2014 Q&A, are important for the
continued safety of student victims during and after assault and
harassment investigations.
One commenter shared the commenter's own research showing that one
of the benefits of the post-2011 Dear Colleague Letter era is that
campuses have prioritized fairness and due process, creating more
robust investigative and adjudicative procedures that value neutrality
and balance the rights of claimants and respondents. Overall, campus
administrators that this commenter has interviewed and surveyed say
that the attention to Title IX has led to vast improvements on their
campuses. Some commenters urged the Department to codify the withdrawn
2011 Dear Colleague Letter.
Other commenters asserted that research suggests that few accused
students face serious sanctions like expulsion. Commenters referred to
a study that found up to 25 percent of respondents were expelled for
being found responsible of sexual assault prior to the withdrawn 2011
Dear Colleague Letter,\300\ while a media outlet reported that data
obtained under the Freedom of Information Act showed that among 100
institutions of higher education and 478 sanctions for sexual assault
issued between 2012 and 2013, only 12 percent of those sanctions were
expulsions.\301\ Commenters argued that studies suggest that campuses
with strong protections for victims also have the strongest protections
for due process, such that campuses that have devoted the most time and
resources to addressing campus sexual assault are, in fact, protecting
due process. Inconsistent
[[Page 30068]]
implementation, commenters argued, is not a reason to change the
regulations.
---------------------------------------------------------------------------
\300\ Commenters cited: Kristen Lombardi, A Lack of Consequences
for Sexual Assault, The Center for Public Integrity (Feb. 24, 2010).
\301\ Commenters cited: Nick Anderson, Colleges often reluctant
to expel for sexual violence, The Washington Post (Dec. 15, 2014).
---------------------------------------------------------------------------
Other commenters argued that there is insufficient factual support
for the Department's claim that educational institutions were confused
about their legal obligations under previous guidance. They noted that
the Department did not commission any research or study to specifically
analyze schools' understanding of their legal obligation or determine
whether there were any areas in which administrators were confused
about their responsibilities. Commenters argued that under the
withdrawn 2011 Dear Colleague Letter, compliance with expectations
under Title IX significantly increased in nearly every major category
including compliance with important aspects of due process, such as
providing notice and procedural information to students participating
in campus sexual violence proceedings. Commenters stated that under the
prior administration, the pendulum did not swing ``too far'' in favor
of victims, but instead was placed exactly where it should have been
for a population that had previously been dismissed, ignored, and
disenfranchised. Commenters argued that any issues with the Title IX
grievance process are the result of individual colleges or Title IX
Coordinators not following the process correctly and not due to issues
with the process itself. Commenters argued that the solution should be
additional resources and training for colleges rather than revising the
process to favor respondents and make it more difficult for victims to
report thereby increasing the already abysmal rate of under reporting.
Commenters asserted that the current Title IX regulations and
withdrawn guidance have been supported by universities and the public.
Commenters pointed out that when the Department called for public
comment on Department regulations in 2017 before withdrawing the 2011
Dear Colleague Letter, 12,035 comments were filed: 99 Percent (11,893)
were in support of Title IX and 96 percent of them explicitly supported
the 2011 Dear Colleague Letter. When all of the individual comments as
well as the petitions and jointly-signed comments are included,
commenters stated that 60,796 expressions of support were filed by the
public, and 137 comments were in opposition. Commenters requested that
the Department build off the framework of the 2011 Dear Colleague
Letter for a fair and compassionate method of reporting and
adjudication so that both the victims and the accused are treated
justly. Many of these commenters argued that due process is important,
yet due process rights were always important in previous Department
guidance and certainly are best practice. If the Department moves
forward with its plans to revise the regulations regarding sexual
assault and harassment, commenters argued the Department would be
knowingly encouraging a continued culture of rape on campuses all
across our country.
Discussion: The Department agrees with commenters who noted that
many student survivors rely on their academic institutions to provide
justice and protection from their assailant; for these reasons, the
final regulations require recipients to offer supportive measures to
every complainant whether or not a grievance process is pending, and
prescribe a grievance process under which complainants and respondents
are treated fairly and under which a victim of sexual harassment must
be provided with remedies designed to restore or preserve the victim's
equal access to education. The Department recognizes that educational
institutions largely have strived in good faith over the last several
years to provide meaningful support for complainants while applying
grievance procedures fairly and that many institutions have made
improvements in their Title IX compliance over the past several years.
However, the Department disagrees with commenters' assertions that the
only deficiency with Department guidance (including withdrawn guidance
such as the 2011 Dear Colleague Letter and current guidance such as the
2001 Guidance) was inconsistent implementation. Because guidance
documents do not have the force and effect of law, the Department's
Title IX guidance could not impose legally binding obligations on
recipients. By following the regulatory process, the Department through
these final regulations ensures that students and employees can better
hold their schools, colleges, and universities responsible for legally
binding obligations with respect to sexual harassment allegations. The
Department appreciates that members of the public expressed support for
the 2011 Dear Colleague Letter in 2017; however, the need for
regulations to replace mere guidance on a subject as serious as sexual
harassment weighed in favor of undertaking the rulemaking process to
develop these final regulations. The Department believes that issuing
regulations rather than guidance brings clarity, permanence, and
accountability to Title IX enforcement. As discussed in the ``Adoption
and Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section and the ``Role of Due Process in the Grievance
Process'' section of this preamble, the approach in these final
regulations is similar in some ways, and different in other ways, from
Department guidance, including the 1997 Guidance, the 2001 Guidance,
the withdrawn 2011 Dear Colleague Letter, the withdrawn 2014 Q&A, and
the 2017 Q&A. The Department believes that these final regulations
provide protections for complainants while ensuring that investigations
and adjudications of sexual harassment are handled in a grievance
process designed to impartially evaluate all relevant evidence so that
determinations regarding responsibility are accurate and reliable,
ensuring that victims of sexual harassment receive justice in the form
of remedies.
The Department disputes that the approach in these final
regulations governing recipient responses to sexual harassment in any
way encourages a culture of rape; to the contrary, the Department
specifically included sexual assault in the definition of Title IX
sexual harassment to ensure no confusion would exist as to whether even
a single instance of rape is tolerable under Title IX.
Changes: None.
Comments: The Department received many comments opposing the
proposed rules, including personal experiences shared by: Survivors;
parents, relatives, and friends of survivors; students; educators
(current and retired); medical and mental health professionals who
treat and work with sexual assault victims; Title IX college officials;
law enforcement officials; business owners; religious figures; and
commenters who have been accused of sexual assault, who recounted the
devastating effects of sexual assault on survivors, stated their
opposition to the proposed rules, and affirmed their belief the
proposed rules will retraumatize victims, worsen Title IX protections,
and embolden predators by making schools less safe. Some commenters
believed that if a student is being harassed in the classroom, the
proposed rules would lessen the teacher's ability to protect the class
effectively.
Commenters also stated that the proposed rules failed to
acknowledge how traumatic experiences like sexual violence can impact
an individual's neurobiological and physiological functioning. Such
commenters asserted that the brain processes traumatic experiences
differently than day-to-day, non-threatening experiences; often
physiological reactions, emotional
[[Page 30069]]
responses, and somatic memories react at different times in different
parts of the brain, resulting in a non-linear recall (or lack of recall
at all) of the traumatic event. Other commenters argued that trauma-
informed approaches result in sexual harassment investigations and
adjudications that prejudge the facts and bias proceedings in favor of
complainants.
Commenters viewed the proposed rules as allowing schools to
intervene only when they deem the abuse is pervasive and severe enough,
leaving many survivors in the position to prove their abuse is worthy
of their school's attention and action. These commenters asserted that
Title IX needs reformation and greater enforcement so that survivors
have more recourse in their healing experiences, in addition to
preventing these incidents from occurring in the first place, as this
is a deeply cultural and systemic problem. Some commenters asserted
that those who start these harassing behaviors at a young age will
escalate such behaviors in future years, and, as such, the proposed
rules would negatively impact the behaviors of our future generations
by curtailing punishment and reporting at an early age.
Some commenters stated that, through the proposed rules, many
sexual assaults would not be covered by Title IX, and survivors,
especially students of color, would not feel protected against possible
discrimination and retaliation should they consider disclosure of
sexual crimes against them. These commenters argued this would impact
all future statistical reporting on nationwide sexual assaults and
harassment, thereby affecting funding sources that support survivors of
sexual assault that rely on accurate data collection.
Another commenter asserted that the Centers for Disease Control and
Prevention has concluded that while risk factors do not cause sexual
violence they are associated with a greater likelihood of perpetration,
and that ``weak community sanctions against sexual violence
perpetrators'' was a risk factor at the community level while ``weak
laws and policies related to sexual violence and gender equity'' is a
risk factor at the societal level.\302\ The commenter argued that the
perception and reality is that the proposed rules will weaken efforts
to hold perpetrators accountable and increase the likelihood of sexual
violence perpetration.
---------------------------------------------------------------------------
\302\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control,
Division of Violence Prevention, Sexual Violence, Risk and
Protective Factors, https://www.cdc.gov/violenceprevention/sexualviolence/riskprotectivefactors.html (last reviewed by the CDC
on Jan. 17, 2020); Jenny Dills et al., Continuing the Dialogue:
Learning from the Past and Looking to the Future of Intimate Partner
Violence and Sexual Violence Prevention, National Center for Injury
Prevention and Control, Centers for Disease Control and Prevention
(2019).
---------------------------------------------------------------------------
Discussion: The Department appreciates that commenters of myriad
backgrounds and experiences emphasized the devastating effects of
sexual assault on survivors and the need for strong Title IX
protections that do not retraumatize victims. The Department believes
that the final regulations provide victims with strong protections from
sexual harassment under Title IX and set clear expectations for when
and how a school must respond to restore or preserve complainants'
equal educational access. Nothing in the final regulations reduces or
limits the ability of a teacher to respond to classroom behavior. If
the in-class behavior constitutes Title IX sexual harassment, the
school is responsible for responding promptly without deliberate
indifference, including offering appropriate supportive measures to the
complainant, which may include separating the complainant from the
respondent, counseling the respondent about appropriate behavior, and
taking other actions that meet the Sec. 106.30 definition of
``supportive measures'' while a grievance process resolves any factual
issues about the sexual harassment incident. If the in-class behavior
does not constitute Title IX sexual harassment (for example, because
the conduct is not severe, or is not pervasive), then the final
regulations do not apply and do not affect a decision made by the
teacher as to how best to discipline the offending student or keep
order in the classroom.
The Department understands from anecdotal evidence and research
studies that sexual violence is a traumatic experience for survivors.
The Department is aware that the neurobiology of trauma and the impact
of trauma on a survivor's neurobiological functioning is a developing
field of study with application to the way in which investigators of
sexual violence offenses interact with victims in criminal justice
systems and campus sexual misconduct proceedings.\303\ The final
regulations require impartiality in investigations and emphasize the
truth-seeking function of a grievance process. The Department wishes to
emphasize that treating all parties with dignity, respect, and
sensitivity without bias, prejudice, or stereotypes infecting
interactions with parties fosters impartiality and truth-seeking.
Further, the final regulations contain provisions specifically intended
to take into account that complainants may be suffering results of
trauma; for instance, Sec. 106.44(a) has been revised to require that
recipients promptly offer supportive measures in response to each
complainant and inform each complainant of the availability of
supportive measures with or without filing a formal complaint. To
protect traumatized complainants from facing the respondent in person,
cross-examination in live hearings held by postsecondary institutions
must never involve parties personally questioning each other, and at a
party's request, the live hearing must occur with the parties in
separate rooms with technology enabling participants to see and hear
each other.\304\
---------------------------------------------------------------------------
\303\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed
Investigation Training (Holland & Knight updated July 19, 2019)
(white paper summarizing trauma-informed approaches to sexual
misconduct investigations, identifying scientific and media support
and opposition to such approaches, and cautioning institutions to
apply trauma-informed approaches carefully to ensure impartial
investigations).
\304\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------
The Department disagrees that the final regulations make survivors
prove their abuse is worthy of attention or action, because the Sec.
106.30 definition of sexual harassment includes sexual assault,
domestic violence, dating violence, and stalking. Such abuse
jeopardizes a complainant's equal educational access and is not subject
to scrutiny or question as to whether such abuse is worthy of a
recipient's response. Title IX coverage of sexual assault requires that
the recipient have actual knowledge that the incident occurred in the
recipient's education program or activity against a person in the
United States. We have revised the Sec. 106.30 definition of ``actual
knowledge'' to include notice to any elementary and secondary school
employee, and to expressly include a report to the Title IX Coordinator
as described in Sec. 106.8(a) (which, in turn, requires a recipient to
notify its educational community of the contact information for the
Title IX Coordinator and allows any person to report using that contact
information, whether or not the person who reports is the alleged
victim or a third party). We have revised the Sec. 106.30 definition
of ``complainant'' to mean any individual ``who is alleged to be the
victim'' of sexual harassment, to clarify that a recipient must offer
supportive measures to any person alleged to be the victim, even if the
complainant is not the person who
[[Page 30070]]
made the report of sexual harassment. We have revised Sec. 106.44(a)
to require the Title IX Coordinator promptly to contact a complainant
to discuss supportive measures, consider the complainant's wishes with
respect to supportive measures, and explain to the complainant the
process and option of filing a formal complaint. Within the scope of
Title IX's reach, no sexual assault needs to remain unaddressed.
The Department understands that sexual harassment occurs throughout
society and not just in educational environments, that data support the
proposition that harassing behavior can escalate if left unaddressed,
and that prevention of sexual harassment incidents before they occur is
a worthy and desirable goal. The final regulations describe the Title
IX legal obligations to which the Department will vigorously hold
schools, colleges, and universities accountable in responding to sexual
harassment incidents. Identifying the root causes and reducing the
prevalence of sexual harassment across our Nation's schools and
campuses remains within the province of schools, colleges,
universities, advocates, and experts.
In response to commenters' concerns that many complainants fear
retaliation for reporting sexual crimes, the final regulations add
Sec. 106.71 expressly prohibiting retaliation, which protects
complainants (and respondents and witnesses) regardless of race,
ethnicity, or other characteristic. The Department intends for
complainants to understand that their right to report under Title IX
(including the right to participate or refuse to participate in a
grievance process) is protected against retaliation. The Department is
aware that nationwide data regarding the prevalence and reporting rates
of sexual assault is challenging to assess, but does not believe that
these final regulations will impact the accuracy of such data
collection efforts.
The Department does not dispute the proposition that weak sanctions
against sexual violence perpetrators and weak laws and policies related
to sexual violence and sex equality are associated with a greater
likelihood of perpetration. The Department believes that Title IX is a
strong law, and that these final regulations constitute strong policy,
standing against sexual violence and aiming to remedy the effects of
sexual violence in education programs and activities. Because Title IX
is a civil rights law concerned with equal educational access, these
final regulations do not require or prescribe disciplinary sanctions.
The Department's charge under Title IX is to preserve victims' equal
access to access, leaving discipline decisions within the discretion of
recipients.
Changes: We have revised the Sec. 106.30 definition of ``actual
knowledge'' to include notice to any elementary and secondary school
employee, and to expressly include a report to the Title IX Coordinator
as described in Sec. 106.8(a). We have revised Sec. 106.8(a) to
expressly allow any person (whether the alleged victim, or a third
party) to report sexual harassment using the contact information that
must be listed for the Title IX Coordinator. We have revised the Sec.
106.30 definition of ``complainant'' to mean any individual ``who is
alleged to be the victim'' of sexual harassment. We have revised Sec.
106.44(a) to require the Title IX Coordinator promptly to contact a
complainant to discuss supportive measures, consider the complainant's
wishes with respect to supportive measures, and explain to the
complainant the process and option of filing a formal complaint. We
have also added Sec. 106.71, prohibiting retaliation against
individuals exercising rights under Title IX including participating or
refusing to participate in a Title IX grievance process.
Comments: Some commenters suggested alternate approaches to the
proposed rules or offered alternative practices. For example,
commenters suggested: Zero-tolerance policies; requiring schools to
install cameras in public or shared spaces on campus to discourage
sexual harassment, provide proof and greater fairness for all parties
involved, and decrease the cost and time spent in such cases; requiring
recipients to provide an accounting of all funds used to comply with
Title IX; creating Federal or State-individualized written protocols
with directions on interviewing parties in Title IX investigations;
requiring schools to adopt broader harassment policies that allow
complaints to be addressed by an independent board with parent,
educational, medical or law enforcement professionals, and peers with
appeal to a second board; providing increased funding and staff for
Title IX programs; third-party monitoring of Title IX compliance; and
requiring universities to provide more thorough reports on gender-based
violence in their systems. Some commenters emphasized the importance of
prevention practices, suggesting various approaches such as: Adopting
the prevention measures in the withdrawn 2011 Dear Colleague Letter;
setting incentives to reward schools for fewer Title IX cases; and
curtailing schools' use of confidential sexual harassment settlement
payments that hide or erase evidence of harassment and protect
predatory behavior.
Other commenters requested more training for organizations such as
fraternities, arguing that sexual assault statistics would improve by
enforcing better standards of behavior at fraternities. Commenters
proposed the Department should rate schools on their compliance to
Title IX standards similar to FIRE's ``Spotlight on Due Process'' \305\
or the Human Rights Campaign's Equality Index.\306\ Commenters proposed
that any new rule should build upon, rather than abrogate, the
requirements of the Campus Sex Crimes Prevention Act of 2000, which
requires institutions of higher education to advise the campus
community where it can obtain information about sex offenders provided
by the State. One commenter urged the Department to add into the final
regulations the statutory exemptions from the Title IX non-
discrimination mandate found in the Title IX statute including Boys
State/Nation or Girls State/Nation conferences (20 U.S.C. 1681(a)(7));
father-son or mother-daughter activities at educational institutions
(20 U.S.C. 1681(a)(8)); and institution of higher education scholarship
awards in ``beauty'' pageants (20 U.S.C. 1681(a)(9)).
---------------------------------------------------------------------------
\305\ Commenters cited: Foundation for Individual Rights in
Education (FIRE), Spotlight on Due Process 2018 (2018), https://www.thefire.org/resources/spotlight/due-process-reports/due-process-report-2018/#top.
\306\ Commenters referenced how the Human Rights Campaign (HRC)
rates workplaces and health care providers on an Equality Index, for
example the Corporate Equality Index Archive, https://www.hrc.org/resources/corporate-equality-index-archives.
---------------------------------------------------------------------------
Another commenter requested that the final regulations commit to
ensuring culturally-sensitive services for students of color, who
experience higher rates of sexual violence and more barriers to
reporting, to help make prevention and support more effective.
Commenters proposed to have each educational institution follow a
guideline when employing staff from ``Women Centers'' as Title IX
Coordinators and staff in Title IX offices, and as student residence
hall directors, to ensure that there is fair judgment in every case of
sexual misconduct that occurs. Commenters argued that justice for all
could be served by less press coverage of high-profile incidents and
that investigations should be kept private until all facts are
gathered, preserving the reputation of all involved.
Discussion: The Department appreciates and has considered the
numerous approaches suggested by commenters, some of whom urged the
[[Page 30071]]
Department to take additional measures and others who desired
alternatives to the proposed rules.
The Department has determined, in light of the Supreme Court's
framework for responding to Title IX sexual harassment and extensive
stakeholder feedback concerning those procedures most needed to improve
the consistency, fairness, and accuracy of Title IX investigations and
adjudications, that the final regulations reasonably and appropriately
obligate recipients to respond supportively and resolve allegations
fairly without encroaching on recipients' discretion to control their
internal affairs (including academic, administrative, and disciplinary
decisions). Many of the commenters' suggestions for additions or
alternatives to the final regulations concern subjects that lie within
recipients' discretion and it may be possible for recipients to adopt
them while also complying with these final regulations. To the extent
that the commenters' suggestions require action by the Department, we
decline to implement or require those practices, in the interest of
preserving recipients' flexibility and retaining the focus of these
regulations on prescribing recipient responses to Title IX sexual
harassment. The Department cannot enforce Title IX in a manner that
requires recipients to restrict any rights protected under the First
Amendment, including freedom of the press.\307\ We have added Sec.
106.71 which prohibits retaliation against an individual for the
purpose of interfering with the exercise of Title IX rights. Section
106.71(a) requires recipients to keep confidential the identity of any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness (unless permitted by FERPA, or required
under law, or as necessary to conduct proceedings under Title IX), and
Sec. 106.71(b) states that exercise of rights protected by the First
Amendment is not retaliation. Section 106.30 defining ``supportive
measures'' instructs recipients to keep confidential the provision of
supportive measures except as necessary to provide the supportive
measures. These provisions are intended to protect the confidentiality
of complainants, respondents, and witnesses during a Title IX process,
subject to the recipient's ability to meet its Title IX obligations
consistent with constitutional protections.
---------------------------------------------------------------------------
\307\ See Peterson v. City of Greenville, 373 U.S. 244 (1963);
Truax v. Raich, 239 U.S. 33, 38 (1915); Sec. 106.6(d)(1).
---------------------------------------------------------------------------
The statutory exceptions to Title IX mentioned by at least one
commenter (i.e., Boys State or Girls' State conferences, father-son or
mother-daughter activities, certain ``beauty'' pageant scholarships)
have full force and effect by virtue of their express inclusion in 20
U.S.C. 1681(a), and the Department declines to repeat those exemptions
in these final regulations, which mainly address a recipient's response
to sexual harassment.
Changes: We have added Sec. 106.71 which prohibits retaliation
against an individual for the purpose of interfering with the exercise
of Title IX rights. Section 106.71(a) requires recipients to keep
confidential the identity of any individual who has made a report or
complaint of sex discrimination, including any individual who has made
a report or filed a formal complaint of sexual harassment, any
complainant, any individual who has been reported to be the perpetrator
of sex discrimination, any respondent, and any witness (unless
permitted by FERPA, or required under law, or as necessary to conduct
proceedings under Title IX), and Sec. 106.71(b) states that exercise
of rights protected by the First Amendment is not retaliation.
Comments: Some commenters suggested broadening the scope of the
proposed rules to address other issues, for example: Providing guidance
on pregnancy and parenting obligations under Title IX; evaluating
coverage of fraternities and sororities under Title IX; funding to
protect women and young adults on campus; girls losing access to
sports, academic, and vocational programs as schools choose to save
money by cutting girls' programs; investigating whether speech and
conduct codes impose a disparate impact on men; covering other forms of
harassment (e.g., race, age, national origin).
A few commenters expressed concern about the lack of clarity for
cases alleging harassment on multiple grounds, such as whether the
proposed provisions regarding mandatory dismissal, the clear and
convincing evidence standard, interim remedies, and cross-examination
would apply to the non-sex allegations. A few commenters requested that
the final regulations address student harassment of staff and faculty
by changing ``employee'' or ``student'' to ``member'' in the final
regulations.
Discussion: The NPRM focused on the problem of recipient responses
to sexual harassment, and the scope of matters addressed by the final
regulations is defined by the subjects presented in the NPRM.
Therefore, the Department declines to address other topics outside of
this original scope, such as pregnancy, parenting, or athletics under
Title IX, coverage of Title IX to fraternities and sororities, whether
speech codes discriminate based on sex, funding intended to protect
women or young adults on campus, funding cuts to girls' programs by
recipients, or forms of harassment other than sexual harassment. The
Department notes that inquiries about the application of Title IX to
particular organizations may be referred to the organization's Title IX
Coordinator or to the Assistant Secretary as indicated in Sec.
106.8(b)(1), and that complaints alleging sex discrimination that does
not constitute sexual harassment may be referred to the recipient's
Title IX Coordinator for handling under the equitable grievance
procedures that recipients must adopt under Sec. 106.8(c).
The Department appreciates commenters' questions regarding the
handling of allegations that involve sexual harassment as well as
harassment based on race (or on a basis other than sex) and appreciates
the opportunity to clarify that the response obligations in Sec.
106.44 and the grievance process in Sec. 106.45 apply only to
allegations of Title IX sexual harassment; the final regulations impose
no new obligations or requirements with respect to non-Title IX sexual
harassment and do not alter existing regulations under civil rights
laws such as Title VI (discrimination on the basis of race, color, or
national origin) or regulations under disability laws such as IDEA,
Section 504, or ADA. The Department will continue to enforce
regulations under those laws and recipients must comply with all
regulations that apply to a particular allegation of discrimination
(including allegations of harassment on multiple bases) accordingly.
The Department declines to change the words ``students'' and
``employees'' to ``members'' in the final regulations, because doing so
could create inconsistencies with the current regulations, and the
meaning of the term ``member'' is not readily understood by reference
to other State and Federal laws, in the way that ``employee'' is.
However, the Department appreciates the opportunity to reiterate that
the
[[Page 30072]]
definitions of ``complainant'' \308\ and ``respondent'' \309\ do not
restrict either party to being a student or employee, and, therefore,
the final regulations do apply to allegations that an employee was
sexually harassed by a student.
---------------------------------------------------------------------------
\308\ Section 106.30 (Complainant ``means an individual who is
alleged to be the victim of conduct that could constitute sexual
harassment.'').
\309\ Section 106.30 (Respondent ``means an individual who has
been reported to be the perpetrator of conduct that could constitute
sexual harassment.'').
---------------------------------------------------------------------------
Changes: None.
Comments: Commenters expressed concern that there is no point in
revising a rule without enforcement and proposed that the Department
should use its enforcement authority to sanction non-compliance of
Title IX, since no school has ever had its funding withdrawn. Other
commenters asked the Department to disallow private rights of action
and the payment of attorney fees, damages, or costs. Other commenters
proposed that the Department revise OCR's existing Case Processing
Manual to: Eliminate biases toward specific groups when handling
charges of rape, sexual harassment, and assault; protect undocumented
students who file Title IX complaints with OCR so they do not have to
fear doing so would lead to their deportation; avoid psychological bias
by OCR investigators; and revise the 180-day complaint timeliness
requirement to allow for complaints to be filed after the 180-day
filing time frame with OCR for allegations involving sexual misconduct,
under certain conditions. Other commenters proposed adding a provision
that expressly releases institutions that are currently subject to
settlement agreements with the Department from provisions that set
forth ongoing obligations that are inconsistent with the new
regulations.
Discussion: The Department agrees with commenters who asserted that
administrative enforcement of Title IX obligations is vital to the
protection of students' and employees' civil rights, and the Department
will vigorously enforce the final regulations. Nothing in these final
regulations alters the existing statutory and regulatory framework
under which the Department exercises its administrative authority to
take enforcement actions against recipients for non-compliance with
Title IX including the circumstances under which a recipient's Federal
financial assistance may be terminated. The Department does not have
authority or ability to affect the existence of judicially-implied
private rights of action under Title IX or the remedies available
through such private lawsuits.
Changes to OCR's Case Processing Manual are outside the scope of
this rulemaking process. The Department will not enforce the final
regulations retroactively; whether prospective enforcement of the final
regulations will impact any existing resolution agreements between
recipients and OCR requires examination of the circumstances of those
resolution agreements. The Department will provide technical assistance
to recipients with questions about the enforceability of existing
resolution agreements.
Changes: None.
Comments: Some commenters expressed general support for Title IX
without reference to sexual misconduct or the proposed rules, for
example, asserting: That Title IX is important to rebuilding the
country's education system; that Title IX has made great strides for
equality in girls' sports; and that Title IX has helped equalize the
power imbalance between women and men. Other commenters expressed
opposition to Title IX generally, for example, arguing: That Title IX
has become a war on men, is biased against men, has set up kangaroo
courts against males, and has fed into destructive identity politics;
that women and men are different and men need to be men; and that Title
IX is no longer needed because women outperform men in several areas
(e.g., college admissions).
A number of commenters expressed support for equality and non-
discrimination, or support for safe schools, public education,
environments conducive to learning, schools operating in loco parentis,
the well-being of children, protection of sex workers, fighting rape
culture, respect for everyone's feelings, or anti-bullying, without
expressing a position on the proposed rules. Without expressing a view
about the proposed rules, some commenters expressed concern about a
young woman murdered at a prominent university, and others expressed
concern that it is too easy to get away with rape already due to ``date
rape'' drugs, online dating sites, and powerful networks of people with
bad intentions helping cover up incidents. A few commenters asked
rhetorical questions such as: Does the government as ``Protector of
Citizens'' devalue sexual assaults in educational institutions? Three
million college students will be sexually assaulted this year: What are
you going to do about it? What if something happened to your child?
A few commenters suggested changes to other agencies' rules, such
as one suggestion that the Department of Labor employment
discrimination rules should address the loss of jobs for female coaches
due to gender-separate sports teams.
Discussion: The Department appreciates the range of opinions
expressed by commenters on the general impact of Title IX. The
Department believes that Title IX has improved educational access for
millions of students since its enactment decades ago, and believes that
these final regulations continue the national effort to make Title IX's
non-discrimination mandate a meaningful reality for all students. The
Department also appreciates commenters' viewpoints about topics related
to gender equality and sexual abuse unrelated to the proposed rules. As
an executive branch agency of the Federal government charged with
enforcing Title IX, the Department believes that sexual assaults in
education programs or activities warrant the extensive attention and
concern demonstrated by the obligations set forth in these final
regulations and that these final regulations will provide millions of
college (and elementary and secondary school) students with clarity
about what to expect from their educational institutions in response to
any incident of sexual assault or other sexual harassment that
constitutes sex discrimination under Title IX.
Comments regarding other agencies' regulations are outside the
scope of this rulemaking process and the Department's jurisdiction.
The Department notes that for comments submitted with no
substantive text, names of survivor advocacy organizations, or pictures
or graphics depicting, e.g., feminist icons, protest marches featuring
cardboard signs with slogans such as ``We Stand With Survivors'' or
``Hands Off IX,'' and similar depictions, the Department has considered
the viewpoints that such pictures, graphics, and slogans appear to
convey.
Changes: None.
Commonly Cited Sources
In explaining opposition to many provisions of the NPRM (most
commonly, use of the Supreme Court's framework to address sexual
harassment, i.e., the definition of sexual harassment, the actual
knowledge requirement, the deliberate indifference standard, the
education program or activity and ``against a person in the U.S.''
jurisdictional limitations, and aspects of the grievance process, e.g.,
permitting a clear and convincing evidence standard, live hearings with
cross-examination in postsecondary institutions, presumption of the
respondent's non-responsibility,
[[Page 30073]]
permitting informal resolution processes such as mediation) commenters
urged the Department to consult works in the literature concerning the
prevalence and impact of sexual harassment, dynamics of sexual
violence, sexual abuse, and violence against women, institutional
betrayal, rates of reporting, and reasons why victims do not report
sexual harassment. These sources included:
W. David Allen, The Reporting and Underreporting of Rape,
73 S. Econ. J. 3 (2007).
The Association of American Universities, Report on the AAU
Campus Climate Survey on Sexual Assault and Sexual Misconduct
(Westat 2015) (commonly referred to as ``AAU/Westat Report'' or
``AAU Survey'').
American Association of University Women, Crossing the
Line: Sexual Harassment at School (2011).
American Association of University Women Educational
Foundation, Drawing the Line: Sexual Harassment on Campus (2005).
Elizabeth A. Armstrong et al., Silence, Power, and
Inequality: An Intersectional Approach to Sexual Violence, 44 Ann.
Rev. of Sociology 99 (2018).
Claudia Avina & William O'Donohue, Sexual harassment and
PTSD: Is sexual harassment diagnosable trauma?, 15 Journal of
Traumatic Stress 1 (2002).
Victoria Banyard et al., Academic Correlates of Unwanted
Sexual Contact, Intercourse, Stalking, and Intimate Partner
Violence: An Understudied but Important Consequence for College
Students, Journal of Interpersonal Violence (2017).
Kelly Alison Behre, Ensuring Choice and Voice for Campus
Sexual Assault Victims: A Call for Victims' Attorneys, 65 Drake L.
Rev. 293 (2017).
Joseph H. Beitchman et al., A review of the long-term
effects of child sexual abuse, 16 Child Abuse & Neglect 1 (1992).
Jennifer J. Berdahl, Harassment based on sex: Protecting
social status in the context of gender hierarchy, 32 Acad. of Mgmt.
Rev. 641 (2007).
Jennifer J. Berdahl & Jana Raver, ``Sexual harassment,'' in
APA Handbook of Indus. and Organizational Psychol. (Sheldon Zedeck
ed., 2010).
Linda L. Berger et al., Using Feminist Theory to Advance
Equal Justice under Law, 17 Nev. L. J. 539 (2017).
Dana Bolger, Gender Violence Costs: Schools' Financial
Obligations Under Title IX, 125 Yale L. J. 2106 (2016).
Kimberly H. Breitenbecher, Sexual assault on college
campuses: Is an ounce of prevention enough?, 9 Applied & Preventive
Psychol. 1 (2000).
Rebecca Campbell & Sheela Raja, The Sexual Assault and
Secondary Victimization of Female Veterans: Help-Seeking Experiences
with Military and Civilian Social Systems, 29 Psychol. of Women
Quarterly 1 (2005).
Rebecca Campbell, What Really Happened? A Validation Study
of Survivors' Help-Seeking Experiences with the Legal and Medical
Systems, 20 Violence & Victims 1 (2005).
Rebecca Campbell, The psychological impact of rape victims'
experiences with the legal, medical and mental health systems, 63
Am. Psychol. 8 (2008).
Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of
Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus
Peer Sexual Violence, 43 Loy. Univ. Chi. L. J. 205 (2011).
Nancy Chi Cantalupo & William C. Kidder, A Systematic Look
at a Serial Problem: Sexual Harassment of Students by University
Faculty, 2018 Utah L. Rev. 671 (2018).
Amy Chmielewski, Defending the Preponderance of the
Evidence Standard in College Adjudications of Sexual Assault, 2013
BYU Educ. & L. J. 143 (2013).
Colleen Cleere & Steven Jay Lynn, Acknowledged Versus
Unacknowledged Sexual Assault Among College Women, 28 Journal of
Interpersonal Violence 12 (2013).
Samantha Craven et al., Sexual grooming of children: Review
of literature and theoretical considerations, 12 Journal of Sexual
Aggression 3 (2006).
Andrea Anne Curcio, Institutional Failure, Campus Sexual
Assault and Danger in the Dorms: Regulatory Limits and the Promise
of Tort Law, 78 Mont. L. Rev. 31 (2017).
David DeMatteo et al., Sexual Assault on College Campuses:
A 50-State Survey of Criminal Sexual Assault Statutes and Their
Relevance to Campus Sexual Assault, 21 Psychol., Pub. Pol'y, & L. 3
(2015).
Dorothy Espelage et al., Longitudinal Associations Among
Bullying, Homophobic Teasing, and Sexual Violence Perpetration Among
Middle School Students, 30 Journal of Interpersonal Violence 14
(2014).
Lisa Fedina et al., Campus Sexual Assault: A Systematic
Review of Prevalence Research From 2000 to 2015, 19 Trauma,
Violence, & Abuse 1 (2018).
Louise F. Fitzgerald et al., Measuring sexual harassment:
Theoretical and psychometric advances, 17 Basic & Applied Social
Psychol. 4 (1995).
Louise F. Fitzgerald et al., The incidence and dimensions
of sexual harassment in academia and the workplace, 32 Journal of
Vocational Behavior 2 (1988).
Rachel E. Gartner & Paul R. Sterzing, Gender
Microaggressions as a Gateway to Sexual Harassment and Sexual
Assault: Expanding the Conceptualization of Youth Sexual Violence,
31 Affilia: J. of Women & Social Work 4 (2016).
Suzanne B. Goldberg, Keep Cross-examination Out of College
Sexual-Assault Cases, Chronicle of Higher Education (Jan. 10, 2019).
Joanne L. Grossman & Deborah L. Brake, A Sharp Backward
Turn: Department of Education Proposes to Protect Schools, Not
Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018).
Sarah Harsey et al., Perpetrator Responses to Victim
Confrontation: DARVO and Victim Self-Blame, 26 Journal of
Aggression, Maltreatment & Trauma 6 (2017).
Judith Lewis Herman, The mental health of crime victims:
impact of legal intervention, 16 Journal of Traumatic Stress 2
(2003).
Heather R. Hlavka, Normalizing Sexual Violence: Young Women
Account for Harassment and Abuse, 28 Gender & Soc'y 3 (2014).
Ivy K. Ho et al., Sexual Harassment and Posttraumatic
Stress Symptoms among Asian and White Women, 21 Journal of
Aggression, Maltreatment & Trauma 1 (2012).
Kathryn J. Holland & Lilia M. Cortina, ``It happens to
girls all the time'': Examining sexual assault survivors' reasons
for not using campus supports, 59 Am. J. of Community Psychol. 1-2
(2017).
Kathryn J. Holland & Lilia M. Cortina, The evolving
landscape of Title IX: Predicting mandatory reporters' responses to
sexual assault disclosures, 41 Law & Hum. Behavior 5 (2017).
Wendy Adele Humphrey, ``Let's Talk About Sex'': Legislating
and Educating on the Affirmative Consent Standard, 50 Univ. of S.F.
L. Rev. 1 (2016).
Irina Iles et al., The unintended consequences of rape
disclosure: The effects of disclosure content, listener gender, and
year in college on listener's reactions, Journal of Interpersonal
Violence (2018).
Jeffrey S. Jones et al., Why women don't report sexual
assault to the police: The influence of psychosocial variables and
traumatic injury, 36 Journal of Emergency Med. 4 (2009).
Carol E. Jordan et al., An Exploration of Sexual
Victimization and Academic Performance Among College Women, 15
Trauma, Violence, & Abuse 3 (2014).
Kaiser Family Foundation & The Washington Post, Survey of
Current and Recent College Students on Sexual Assault (2015).
Shamus Khan et al., ``I Didn't Want to Be `That Girl''':
The Social Risks of Labeling, Telling, and Reporting Sexual Assault,
5 Sociological Sci. 432 (2018).
National Victim Center and Crime Victims Research and
Treatment Center, Rape in America: A Report to the Nation (1992).
Gay, Lesbian and Straight Education Network (GLSEN), The
2017 National School Climate Survey: The Experiences of Lesbian,
Gay, Bisexual, Transgender, and Queer Youth in Our Nation's Schools
(2018).
Mary P. Koss, The Scope of Rape: Incidence and Prevalence
of Sexual Aggression and Victimization in a National Sample of
Higher Education Students, 55 Journal of Consulting & Clinical
Psychol. 2 (1987).
Mary P. Koss, ``Hidden Rape: Sexual Aggression and
Victimization in a National Sample of Students in Higher
Education,'' in Confronting Rape and Sexual Assault 51-69 (M.E. Odom
& J. Clay-Warner eds., 1998).
[[Page 30074]]
Christopher Krebs et al., Bureau of Justice Statistics
Research and Development Series: Campus Climate Survey Validation
Study Final Technical Report (2016).
Christopher Krebs et al., College Women's Experiences with
Physically Forced, Alcohol- or Other Drug-Enabled, and Drug-
Facilitated Sexual Assault Before and Since Entering College, 57
Journal of Am. Coll. Health 6 (2009).
Emily Leskinen et al., Gender harassment: Broadening our
understanding of sex-based harassment at work, 35 Law & Hum.
Behavior 1 (2011).
David Lisak & Paul Miller, Repeat Rape and Multiple
Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002).
David Lisak et al., False Allegations of Sexual Assault: An
Analysis of Ten Years of Reported Cases, 16 Violence Against Women
12 (2010).
Kimberly A. Lonsway et al., False reports: Moving beyond
the issue to successfully investigate and prosecute non-stranger
sexual assault, 3 The Voice 1 (2009).
Kimberly A. Lonsway & Joanne Archambault, The ``justice
gap'' for sexual assault cases: Future directions for research and
reform, 18 Violence Against Women 2 (2012).
Catharine A. MacKinnon, In Their Hands: Restoring
Institutional Liability for Sexual Harassment in Education, 125 Yale
L. J. 2038 (2016).
Shana L. Maier, ``I have heard horrible stories . . .'':
rape victim advocates' perceptions of the revictimization of rape
victims by the police and medical system, 14 Violence Against Women
7 (2008).
Shana L. Maier, The emotional challenges faced by Sexual
Assault Nurse Examiners: ``ER nursing is stressful on a good day
without rape victims'', 7 Journal of Forensic Nursing 4 (2011).
Patricia Yancey Martin, Rape Work: Victims, Gender, and
Emotions in Organization and Community Context (Taylor & Francis
Group 2005).
Patricia Yancey Martin, The Rape Prone Culture of Academic
Contexts: Fraternities and Athletics, 30 Gender & Soc'y 1 (2016).
Anne-Marie Mcalinden, Setting 'Em Up': Personal, Familial
and Institutional Grooming in the Sexual Abuse of Children, 15
Social & Legal Stud. 3 (2006).
Elizabeth McDonald & Yvette Tinsley, Use of Alternative
Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals,
Issues and Challenges, Victoria Univ. of Wellington L. Rev. (July 2,
2012) (forthcoming Victoria University of Wellington Legal Research
Paper No. 2/2011).
Sarah McMahon et al., Measuring Bystander Attitudes and
Behavior to Prevent Sexual Violence, 62 Journal of Am. Coll. Health
1 (2014).
Cecilia Mengo & Beverly M. Black, Violence Victimization on
a College Campus: Impact on GPA and School Dropout, 18 Journal of
Coll. Student Retention: Research, Theory & Practice 2 (2015).
Audrey Miller et al., Stigma-Threat motivated nondisclosure
of sexual assault and sexual revictimization: A prospective
analysis, 35 Psychol. of Women Quarterly 1 (2011).
Ted R. Miller et al., Victim Costs of Violent Crime and
Resulting Injuries, 12 Health Affairs 4 (1993).
Emma Millon et al., Stressful Life Memories Relate to
Ruminative Thoughts in Women with Sexual Violence History,
Irrespective of PTSD, Frontiers in Psychiatry (Sept. 5, 2018).
National Association of Student Affairs Administrators in
Higher Education (NASPA) & Education Commission of the States, State
Legislative Developments on Campus Sexual Violence: Issues in the
Context of Safety (2015).
Charlene L. Muehlenhard, et al., Evaluating the One-in-Five
Statistic: Women's Risk of Sexual Assault While in College, 54 The
J. of Sex Research 4-5 (2017).
National Academies of Science, Engineering, and Medicine,
Sexual Harassment of Women: Climate, Culture, and Consequences in
Academic Sciences, Engineering, and Medicine (Frasier F. Benya et
al. eds., 2018).
Jim Parsons & Tiffany Bergin, The impact of criminal
justice involvement on victims' mental health, 23 Journal of
Traumatic Stress 2 (2010).
Debra Patterson & Rebecca Campbell, Why rape survivors
participate in the criminal justice system, 38 Journal of Community
Psychol. 2 (2010).
Cora Peterson et al., Lifetime Economic Burden of Rape
Among U.S. Adults, 52 Am. J. of Preventive Med. 6 (2017).
Melissa Platt et al., ``A Betrayal Trauma Perspective on
Domestic Violence,'' in Violence Against Women in Families and
Relationships 185-207 (Evan Stark & Eve S. Buzawa eds., Greenwood
Press 2009).
Sharyn Potter et al., Long-term impacts of college sexual
assaults on women survivors' educational and career attainments, 66
Journal of Am. Coll. Health 6 (2018).
Elizabeth Quinlan et al., Enhancing Care and Advocacy for
Sexual Assault Survivors on Canadian Campuses, 46 Canadian J. of
Higher Education 2 (2016).
Andrea J. Ritchie, Invisible No More: Police Violence
against Black Women and Women of Color (Beacon Press 2017).
Andrea Roberts et al., Pervasive trauma exposure among US
sexual orientation minority adults and risk of posttraumatic stress
disorder, 100 Am. J. of Pub. Health 12 (2010).
Emily A. Robey-Phillips, Federalism in Campus Sexual
Violence: How States Can Protect Their Students When a Trump
Administration Will Not, 29 Yale J. of L. & Feminism 373 (2018).
Marina N. Rosenthal et al., Still second class: Sexual
harassment of graduate students, 40 Psychol. of Women Quarterly 3
(2016).
Maria Rotundo et al., A Meta-Analytic Review of Gender
Differences in Perceptions of Sexual Harassment, 86 Journal of
Applied Psychol. 5 (2001).
Chaira Sabina & Lavina Ho, Campus and college victim
responses to sexual assault and dating violence: Disclosure, service
utilization, and service provision, 15 Trauma, Violence, & Abuse 3
(2014).
Marjorie R. Sable et al., Barriers to Reporting Sexual
Assault for Women and Men: Perspectives of College Students, 55 Am.
Coll. Health 3 (2006).
Lauren Schroeder, Cracks in the Ivory Tower: How the Campus
Sexual Violence Elimination Act Can Protect Students from Sexual
Assault, 45 Loy. Univ. Chi. L. J. 1195 (2014).
Diana Scully & Joseph Marolla, Convicted rapists'
vocabulary of motive: Excuses and justifications, 31 Social Problems
5 (1984).
Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis
of Existing Literature (2004) (prepared for the U.S. Dep't. of
Education).
Tracey J. Shors & Emma Millon, Sexual trauma and the female
brain, 41 Frontiers in Neuroendocrinology 87 (2016).
Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous Safe
Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 Journal
of Traumatic Stress 1 (2013).
Carly Parnitzke Smith & Jennifer J. Freyd, Institutional
betrayal, 69 Am. Psychol. 6 (2014).
Carly Parnitzke Smith & Jennifer J. Freyd, Insult, then
injury: Interpersonal and institutional betrayal linked to health
and dissociation, 26 Journal of Aggression, Maltreatment & Trauma 10
(2017).
Centers for Disease Control and Prevention, National Center
for Injury Prevention and Control, The National Intimate Partner and
Sexual Violence Survey (NISVS): 2010-2012 State Report (2017).
Kathryn M. Stanchi & Jan M. Levine, Gender and Legal
Writing: Law Schools' Dirty Little Secrets, 16 Berkeley Women's L.
J. 3 (2001).
Kathryn M. Stanchi & Linda L. Berger, ``Gender Justice: The
Role of Stories and Images,'' in Metaphor, Narrative and the Law
(Michael Hanne & Robert Weisberg eds., Cambridge Univ. Press 2018).
Kathryn M. Stanchi, Feminist Legal Writing, 39 San Diego L.
Rev. 387 (2002).
Kathryn M. Stanchi, Who Next, the Janitors? A Socio-
Feminist Critique of the Status Hierarchy of Law Professors, 73
Univ. of Missouri-Kansas L. Rev. 2 (2004).
Tara K. Streng & Akiko Kamimura, Sexual Assault Prevention
and Reporting on College Campuses in the US: A Review of Policies
and Recommendations, 6 Journal of Education & Practice 3 (2015).
Janet K. Swim et al., Everyday sexism: Evidence for its
incidence, nature, and psychological impact from three daily diary
studies, 57 Journal of Social Issues 1 (2001).
John F. Tedesco & Steven V. Schnell, Children's reactions
to sex abuse investigation and litigation, 11 Child Abuse & Neglect
2 (1987).
[[Page 30075]]
Bessel A. van der Kolk & Rita Fisler, Dissociation & the
fragmentary nature of traumatic memories: Overview & exploratory
study, 8 Journal of Traumatic Stress 4 (1995).
Bessel A Van Der Kolk, The Body Keeps the Score: Brain,
Mind, and Body in the Healing of Trauma (Penguin Books 2014).
Erica van Roosmalen & Susan A. McDaniel, Sexual harassment
in academia: A hazard to women's health, 28 Women & Health 2 (1999).
Grayson S. Walker, The Evolution and Limits of Title IX
Doctrine on Peer Sexual Assault, 45 Harv. C.R.-C.L. L. Rev. 95
(2010).
Wendy Walsh et al., Disclosure and Service Use on a College
Campus After an Unwanted Sexual Experience, 11 Journal of Trauma &
Dissociation 2 (2010).
Lavinia M. Weizel, The Process That is Due: Preponderance
of the Evidence as the Standard of Proof for University
Adjudications of Student-on-Student Sexual Assault Complaints, 53
Boston Coll. L. Rev. 1613 (2012).
Nicole Westmarland & Sue Alderson, The Health, Mental
Health, and Well-Being Benefits of Rape Crisis Counseling, 28
Journal of Interpersonal Violence 17 (2013).
Jacqueline M. Wheatcroft et al., Revictimizing the Victim?
How Rape Victims Experience the UK Legal System, 4 Victims &
Offenders 3 (2009).
Helen Whittle et al., A Comparison of Victim and Offender
Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7
(2015).
Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of
Title IX Coordinators on College and University Campuses, 8
Behavioral Sci. 4 (2018).
Joyce E. Williams & Karen A. Holmes, The Second Assault:
Rape and Public Attitudes (Praeger Publishers 1981).
Laura C. Wilson & Katherine E. Miller, Meta-Analysis of the
Prevalence of Unacknowledged Rape, 17 Trauma, Violence, & Abuse 2
(2016).
Kate B Wolitzky-Taylor et al., Reporting rape in a national
sample of college women, 59 Journal of Am. Coll. Health 7 (2011).
Anne B. Woods et al., The mediation effect of posttraumatic
stress disorder symptoms on the relationship of intimate partner
violence and IFN-[gamma] levels, 36 Am. J. of Community Psychol. 1-2
(2005).
Corey R. Yung, Concealing Campus Sexual Assault: An
Empirical Examination, 21 Psychol., Pub. Pol'y, & L. 1 (2015).
Sarah Zydervelt et al., Lawyers' Strategies for Cross-
examining Rape Complainants: Have we Moved Beyond the 1950s?, 57
British J. of Criminology 3 (2016).
The Department has considered the sources cited to by commenters. For
reasons described in this preamble, the Department believes that the
final regulations create a predictable framework governing recipients'
responses to allegations of sexual harassment in furtherance of Title
IX's non-discrimination mandate.
Data--Overview
Many commenters referred the Department to statistics, data,
research, and studies about the prevalence of sexual harassment, the
impact of sexual harassment, the cost to victims of sexual harassment,
underreporting of sexual harassment, problematic patterns of survivors
facing negative stereotypes or being accused of ``lying'' when
reporting sexual harassment, and rates of false accusations. Many
commenters pointed to such data and information as part of general
opposition to the proposed rules, expressing concern that the proposed
rules as a whole would exacerbate the prevalence and negative impact of
sexual harassment for all victims and with respect to specific
demographic groups. Many commenters cited to such data and information
in opposition to specific parts of the proposed rules, most commonly:
Use of the Supreme Court's framework to address sexual harassment
(i.e., the definition of sexual harassment, the actual knowledge
requirement, the deliberate indifference standard), the education
program or activity and ``against a person in the U.S.'' jurisdictional
limitations, and aspects of the grievance process (e.g., permitting a
clear and convincing evidence standard, live hearings with cross-
examination in postsecondary institutions, presumption of the
respondent's non-responsibility, permitting informal resolution
processes such as mediation). The Department has carefully considered
the data and information presented by commenters with respect to the
aforementioned aspects of the final regulations and with respect to the
overall approach and framework of the final regulations.
Prevalence Data--Elementary and Secondary Schools
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
against children and adolescents, and in elementary and secondary
schools, including as follows:
Data show that sexual assault is most prevalent among
adolescents as compared to any other group. School was reported as the
most common location for this peer-on-peer victimization to occur.
Fifty-one percent of high school girls and 26 percent of high school
boys experienced adolescent peer-on-peer sexual assault
victimization.\310\
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\310\ Commenters cited: Amy M. Young et al., Adolescents'
Experiences of Sexual Assault by Peers: Prevalence and Nature of
Victimization Occurring Within and Outside of School, 38 Journal of
Youth & Adolescence 1072 (2009).
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One in four young women experiences sexual assault before
the age of 18.\311\
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\311\ Commenters cited: Girls, Inc., 2018 Strong, Smart, and
Bold outcomes survey report (2018) (citing David Finklehor et al.,
The lifetime prevalence of child sexual abuse and sexual assault
assessed in late adolescence, 55 Journal of Adolescent Health 3
(2014)).
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One study found that ten percent of children were targets
of educator sexual misconduct by the time they graduated from high
school.\312\
---------------------------------------------------------------------------
\312\ Commenters cited: Charol Shakeshaft, Educator Sexual
Misconduct: A Synthesis of Existing Literature (2004) (prepared for
the U.S. Dep't. of Education).
---------------------------------------------------------------------------
Nearly half (48 percent) of U.S. students are subject to
sexual harassment or assault at school before they graduate high school
(56 percent of girls and 40 percent of boys).\313\ There were at least
17,000 official reports of sexual assaults of K-12 students by their
peers between 2011 and 2015.\314\ A longitudinal study found that 68
percent of girls and 55 percent of boys surveyed had at least one
sexual harassment victimization experience in high school.\315\ A
survey of 2,064 students in grades eight through11 indicated: 83
percent of girls have been sexually harassed; 78 percent of boys have
been sexually harassed; 38 percent of the students were harassed by
teachers or school employees; 36 percent of school employees or
teachers were harassed by students; and 42 percent of school employees
or teachers had been harassed by each other.\316\
---------------------------------------------------------------------------
\313\ Commenters cited: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011).
\314\ Commenters cited: Robin McDowell et al., Hidden Horror of
school sex assaults revealed by AP, Associated Press (May 1, 2017).
\315\ Commenters cited: Dorothy Espelage et al., Longitudinal
Associations Among Bullying, Homophobic Teasing, and Sexual Violence
Perpetration Among Middle School Students, 30 Journal of
Interpersonal Violence 14 (2014).
\316\ Commenters cited: American Association of University Women
Educational Foundation, Hostile Hallways: Bullying Teasing, and
Sexual Harassment in School (2001).
---------------------------------------------------------------------------
One sexual assault study surveyed 18,030 high school
students and found that 18.5 percent reported victimization and eight
percent reported perpetration in the past year; although females were
more likely to report unwanted sexual activities due to feeling
pressured, there were no significant sex differences among those
reporting physical force or unwanted sexual activities due to
[[Page 30076]]
alcohol or drug use.\317\ In another study in which 18,090 high school
students completed a survey, 30 percent disclosed sexual harassment
victimization (37 percent of females, 21 percent of males) and 8.5
percent reported perpetration (five percent of females, 12 percent of
males).\318\
---------------------------------------------------------------------------
\317\ Commenters cited: Corrine M. Williams et. al.,
Victimization and Perpetration of Unwanted Sexual Activities Among
High School Students: Frequency and Correlates, 20 Violence Against
Women 10 (2014).
\318\ Commenters cited: Emily R. Clear et al., Sexual Harassment
Victimization and Perpetration Among High School Students, 20
Violence Against Women 10 (2014).
---------------------------------------------------------------------------
In one study designed to examine sexual harassment
victimization among American middle school youth (grades five through
eight), verbal victimization was more frequent than physical
victimization and sexual assault; the types of sexual harassment
experienced and the perpetrators varied by sex, race, and grade level;
nearly half (43 percent) of middle school students experienced verbal
sexual harassment the previous year; 21 percent of middle school
students reported having been pinched, touched, or grabbed in a sexual
way, 14 percent reported having been the target of sexual rumors, and
nine percent had been victimized with sexually explicit graffiti in
school locker rooms or bathrooms.\319\
---------------------------------------------------------------------------
\319\ Commenters cited: Dorothy L. Espelage et al.,
Understanding types, locations, & perpetrators of peer-to-peer
sexual harassment in U.S. middle schools: A focus on sex, racial,
and grade differences, 71 Children & Youth Serv. Rev. 174 (2016).
---------------------------------------------------------------------------
One study's data reveal that, while boys' violence towards
girls comprises a substantial proportion of sexual violence in the
middle school population, same-sex violence and girls' violence towards
boys are also prevalent.\320\
---------------------------------------------------------------------------
\320\ Commenters cited: Ethan Levin, Sexual Violence Among
Middle School Students: The Effects of Gender and Dating Experience,
32 Journal of Interpersonal Violence 14 (2015).
---------------------------------------------------------------------------
In the 2010-2011 school year, 36 percent of girls, 24
percent of boys, and 30 percent of all students in grades seven through
12 experienced sexual harassment online.\321\
---------------------------------------------------------------------------
\321\ Commenters cited: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------
Analysis of the Civil Rights Data Collection for 2015-16,
with data from 96,000 public and public charter P-12 educational
institutions including magnet schools, special education schools,
alternative schools, and juvenile justice facilities showed that: More
than three-fourths (79 percent) of the 48,000 public schools with
students in grades seven through 12 disclosed zero reported allegations
of harassment or bullying on the basis of sex, showing that students
experience far more sexual harassment than schools report.\322\
---------------------------------------------------------------------------
\322\ Commenters cited: American Association of University
Women, Schools are Still Underreporting Sexual Harassment and
Assault (Nov. 2, 2018), https://www.aauw.org/article/schools-still-underreporting-sexual-harassment-and-assault/.
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects children, adolescents, and
students throughout elementary and secondary schools across the
country. When sexual harassment constitutes sex discrimination covered
by Title IX, the final regulations hold schools accountable for
responding in ways that restore or preserve a complainant's equal
access to education.
Changes: None.
Prevalence Data--Postsecondary Institutions
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
in postsecondary institutions, including as follows:
One in five college women experience attempted or
completed sexual assault in college; \323\ some studies state one in
four.\324\ One in 16 men are sexually assaulted while in college.\325\
One poll reported that 20 percent of women, and five percent of men,
are sexually assaulted in college.\326\
---------------------------------------------------------------------------
\323\ Commenters cited: Christopher Krebs et al., Bureau of
Justice Statistics Research and Development Series: Campus Climate
Survey Validation Study Final Technical Report (2016); Lisa Wade,
American Hookup: The New Culture of Sex on Campus (W.W. Norton & Co.
2016).
\324\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
\325\ Commenters cited: National Sexual Violence Resource
Center: Info and Stats for Journalists, Statistics About Sexual
Violence (2015) (citing National Institute of Justice, The Campus
Sexual Assault (CSA) Study: Final Report (2007)).
\326\ Commenters cited: Kaiser Family Foundation & The
Washington Post, Survey of Current and Recent College Students on
Sexual Assault (2015).
---------------------------------------------------------------------------
62 percent of women and 61 percent of men experience
sexual harassment during college.\327\
---------------------------------------------------------------------------
\327\ Commenters cited: American Association of University Women
Educational Foundation, Drawing the Line: Sexual Harassment on
Campus (2005).
---------------------------------------------------------------------------
Among undergraduate students, 23.1 percent of females and
5.4 percent of males experience rape or sexual assault; among graduate
and undergraduate students 11.2 percent experience rape or sexual
assault through physical force, violence, or incapacitation; 4.2
percent have experienced stalking since entering college.\328\
---------------------------------------------------------------------------
\328\ Commenters cited: Rape, Abuse & Incest National Network
(RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/statistics/campus-sexual-violence.
---------------------------------------------------------------------------
More than 50 percent of college sexual assaults occur in
August, September, October, or November, and students are at an
increased risk during the first few months of their first and second
semesters in college; 84 percent of the women who reported sexually
coercive experiences experienced the incident during their first four
semesters on campus.\329\
---------------------------------------------------------------------------
\329\ Commenters cited: Matthew Kimble et al., Risk of Unwanted
Sex for College Women: Evidence for a Red Zone, 57 Journal of Am.
Coll. Health 3 (2010).
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Seven out of ten rapes are committed by someone known to
the victim; \330\ for most women victimized by attempted or completed
rape, the perpetrator was a boyfriend, ex-boyfriend, classmate, friend,
acquaintance, or coworker.\331\
---------------------------------------------------------------------------
\330\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, National Crime
Victimization Survey (2015).
\331\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute of Justice, Research Report:
The Sexual Victimization of College Women (2000).
---------------------------------------------------------------------------
A study showed that 63.3 percent of men at one university
who self-reported acts qualifying as rape or attempted rape admitted to
committing repeat rapes.\332\
---------------------------------------------------------------------------
\332\ Commenters cited: David Lisak & Paul Miller, Repeat Rape
and Multiple Offending Among Undetected Rapists, 17 Violence &
Victims 1 (2002).
---------------------------------------------------------------------------
Of college students in fraternity and sorority life, 48.1
percent of females and 23.6 percent of males have experienced
nonconsensual sexual contact, compared with 33.1 percent of females and
7.9 percent of males not in fraternity and sorority life.\333\
---------------------------------------------------------------------------
\333\ Commenters cited: Jennifer J. Freyd, The UO Sexual
Violence and Institutional Betrayal Surveys: 2014, 2015, and 2015-
2016, https://dynamic.uoregon.edu/jjf/campus/.
---------------------------------------------------------------------------
Fifty-eight percent of female academic faculty and staff
experienced sexual harassment across all U.S. colleges and
universities, and one in ten female graduate students at most major
research universities reports being sexually harassed by a faculty
member.\334\
---------------------------------------------------------------------------
\334\ Commenters cited: National Academies of Science,
Engineering, and Medicine, Sexual Harassment of Women: Climate,
Culture, and Consequences in Academic Sciences, Engineering, and
Medicine (Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------
Twenty-one to 38 percent of college students experience
faculty/staff-perpetrated sexual harassment and 39 to 64.5 percent
experience student-
[[Page 30077]]
perpetrated sexual harassment during their time at their
university.\335\
---------------------------------------------------------------------------
\335\ Commenters cited: Marina N. Rosenthal et al., Still second
class: Sexual harassment of graduate students, 40 Psychol. of Women
Quarterly 3 (2016).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects students and employees in
postsecondary institutions across the country. When sexual harassment
constitutes sex discrimination covered by Title IX, the final
regulations hold colleges and universities accountable for responding
in ways that restore or preserve a complainant's equal access to
education.
Changes: None.
Prevalence Data--Women
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
against girls and women, including as follows:
Sexual assault disproportionately harms women; 84 percent
of sexual assault and rape victims are female.\336\ Among females, the
highest rate of domestic abuse victimization occurs between the ages of
16-24, ages when someone is most likely to be a high school or college
student.\337\ Among college-aged female homicide victims, 42.9 percent
were killed by an intimate partner.\338\
---------------------------------------------------------------------------
\336\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, National Crime
Victimization Survey (2017).
\337\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics Factbook: Violence by
Intimates (1998).
\338\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Homicide Trends in
the United States: 1980-2008: Annual Rates for 2009 and 2010 (2011).
---------------------------------------------------------------------------
One out of every six American women has been the victim of
an attempted or completed rape in her lifetime (14.8 percent completed
rape, 2.8 percent attempted rape for a total of 17.6 percent).\339\ The
national rape-related pregnancy rate is five percent among victims of
reproductive age (aged 12 to 45); among adult women an estimated 32,101
pregnancies result from rape each year.\340\ Fifty-six percent of girls
ages 14-18 who are pregnant or parenting are kissed or touched without
their consent.\341\
---------------------------------------------------------------------------
\339\ Commenters cited: Rape, Abuse & Incest National Network
(RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/statistics/campus-sexual-violence.
\340\ Commenters cited: Melissa M. Holmes, Rape-related
pregnancy: Estimates and descriptive characteristics from a national
sample of women, 17 Am. J. of Obstetrics & Gynecology 2 (1996).
\341\ Commenters cited: National Women's Law Center (NWLC), Let
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting
(2017).
---------------------------------------------------------------------------
A few commenters argued that the prevalence rate for
sexual assault against college-age women is lower than shown by the
above data, with the rate of rape and sexual assault being lower for
female college students (6.1 per 1,000) than for female college-age
nonstudents (7.6 per 1,000).\342\
---------------------------------------------------------------------------
\342\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics Special Report: Rape
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects girls and women in significant
numbers. When sexual harassment constitutes sex discrimination covered
by Title IX, the final regulations hold schools accountable for
responding in ways that restore or preserve a complainant's equal
access to education.
Changes: None.
Prevalence Data--Men
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
against boys and men, including as follows:
Approximately one in six men have experienced some form of
sexual violence in their lifetime.\343\ Sixteen percent of men were
sexually assaulted by the age of 18.\344\ Approximately one in 33
American men has experienced an attempted or completed rape in their
lifetime.\345\
---------------------------------------------------------------------------
\343\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): 2010
Summary Report (Nov. 2011).
\344\ Commenters cited: Shanta R. Dube, Long-term consequences
of childhood sexual abuse by gender of victim, 28 Am. J. of
Preventive Med. 5 (2005).
\345\ Commenters cited: Rape, Abuse, & Incest National Network
(RAINN), Scope of the Problem: Statistics, https://www.rainn.org/statistics/scope-problem.
---------------------------------------------------------------------------
College-age male victims accounted for 17 percent of rape
and sexual assault victimizations against students and four percent
against nonstudents.\346\ Approximately 15 percent of college men are
victims of forced sex during their time in college.\347\
---------------------------------------------------------------------------
\346\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Special Report: Rape
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
\347\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute of Justice, Research Report:
The Sexual Victimization of College Women (2000).
---------------------------------------------------------------------------
Approximately 26 percent of gay men, and 37 percent of
bisexual men, experience rape, physical violence, or stalking by an
intimate partner.\348\
---------------------------------------------------------------------------
\348\ Commenters cited: Human Rights Campaign, Sexual Assault
and the LGBTQ Community, https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community; Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): An
Overview of 2010 Findings on Victimization by Sexual Orientation.
---------------------------------------------------------------------------
Men are more likely to be assaulted than falsely accused
of assault.\349\
---------------------------------------------------------------------------
\349\ Commenters cited: Tyler Kingkade, Males are More Likely to
Suffer Sexual Assault Than to be Falsely Accused of it, The
Huffington Post (Dec. 8, 2014).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects boys and men in significant
numbers. When sexual harassment constitutes sex discrimination covered
by Title IX, the final regulations hold schools accountable for
responding in ways that restore or preserve a complainant's equal
access to education.
Changes: None.
Prevalence Data--LGBTQ Persons
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
against LGBTQ individuals, including as follows:
A 2015 survey found that 47 percent of transgender people
are sexually assaulted at some point in their lifetime: Transgender
women have been sexually assaulted at a rate of 37 percent; nonbinary
people assigned male at birth have been sexually assaulted at a rate of
41 percent; transgender men have been sexually assaulted at a rate of
51 percent; and nonbinary people assigned female at birth have been
sexually assaulted at a rate of 58 percent.\350\ Another study, which
drew from interviews of over 16,500 adults, indicated that gay and
bisexual individuals experienced a higher lifetime prevalence of sexual
violence than their heterosexual counterparts.\351\
---------------------------------------------------------------------------
\350\ Commenters cited: National Center for Transgender
Equality, The Report of the 2015 U.S. Transgender Survey (Dec.
2016).
\351\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): An
Overview of 2010 Findings on Victimization by Sexual Orientation.
---------------------------------------------------------------------------
A study found that transgender students, who represented
1.8 percent of high school respondents to a survey, faced far higher
rates of assault and harassment than their peers: 24 percent of
transgender students had been forced to have sexual intercourse,
compared to four percent of male cisgender students and 11 percent of
female cisgender students; 23 percent of transgender students
experienced sexual dating
[[Page 30078]]
violence, compared to four percent of male cisgender students and 12
percent of female cisgender students; more than one-quarter (26
percent) experienced physical dating violence, compared to six percent
of male cisgender students and nine percent of female cisgender
students; transgender students were more likely to face bullying and
violence in school overall compared to cisgender students.\352\
---------------------------------------------------------------------------
\352\ Commenters cited: Michelle M. Johns et al., Transgender
Identity and Experiences of Violence Victimization, Substance Use,
Suicide Risk, and Sexual Risk Behaviors Among High School Students--
19 States and Large Urban School Districts, 2017, 68 Morbidity &
Mortality Weekly Report 3 (Jan. 25, 2019).
---------------------------------------------------------------------------
Lesbian, gay, and bisexual students are more likely to
experience nonconsensual sexual contact by physical force or
incapacitation than heterosexual students: 14 percent of gay or lesbian
students and 25 percent of bisexual students reported experiencing
nonconsensual sexual contact while in college or graduate school
compared to 11 percent of heterosexual students.\353\
---------------------------------------------------------------------------
\353\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------
A 2018 study found that 57.3 percent of LGBTQ students
were sexually harassed at school during the past year.\354\ Another
survey showed that 38 percent of LGBTQ girls had been kissed or touched
without their consent.\355\ Eighty-six percent of high school
transgender individuals had experienced a form of sexual violence due
to their gender identity, often perpetrated by other students.\356\
Nearly 25 percent of transgender, genderqueer, and gender nonconforming
or questioning students experience sexual violence during their
undergraduate education.\357\
---------------------------------------------------------------------------
\354\ Commenters cited: Gay, Lesbian and Straight Education
Network (GLSEN), The 2017 National School Climate Survey: The
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth
in Our Nation's Schools (2018).
\355\ Commenters cited: National Women's Law Center (NWLC), Let
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting
(2017).
\356\ Commenters cited: Rebecca L. Stotzer, Violence Against
Transgender People: A Review of United States Data, 14 Aggression &
Violent Behavior 3 (2009).
\357\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------
Twenty-two percent of lesbian, gay, and bisexual youth
have experienced sexual violence, more than double the rate reported by
heterosexual youth.\358\ According to another survey: 44 percent of
lesbians and 61 percent of bisexual women experience rape, physical
violence, or stalking by an intimate partner, compared to 35 percent of
heterosexual women; 26 percent of gay men and 37 percent of bisexual
men experience rape, physical violence, or stalking by an intimate
partner, compared to 29 percent of heterosexual men; 46 percent of
bisexual women have been raped, compared to 17 percent of heterosexual
women; 13 percent of lesbians and 22 percent of bisexual women have
been raped by an intimate partner, compared to nine percent of
heterosexual women; 40 percent of gay men and 47 percent of bisexual
men have experienced sexual violence other than rape, compared to 21
percent of heterosexual men; and 46.4 percent of lesbians, 74.9 percent
of bisexual women, and 43.3 percent of heterosexual women, reported
sexual violence other than rape during their lifetimes, while 40.2
percent of gay men, 47.4 percent of bisexual men, and 20.8 percent of
heterosexual men reported sexual violence other than rape during their
lifetimes.\359\
---------------------------------------------------------------------------
\358\ Commenters cited: Centers for Disease Control &
Prevention, Division of Adolescent & School Health, Youth Risk
Behavior Survey Data Summary and Trends Report: 2007-2017 (2018).
\359\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): An
Overview of 2010 Findings on Victimization by Sexual Orientation.
---------------------------------------------------------------------------
More than eight in ten LGBTQ students experienced
harassment or assault at school and more than half (57 percent) were
sexually harassed at school; 70 percent of LGBTQ students said that
they were verbally harassed, 29 percent said that they were physically
harassed, and 12 percent said that they were physically assaulted
because of their sexual orientation; 60 percent of LGBTQ students said
that they were verbally harassed, 24 percent said that they were
physically harassed, and 11 percent said that they were physically
assaulted because of their gender expression.\360\
---------------------------------------------------------------------------
\360\ Commenters cited: Gay, Lesbian and Straight Education
Network (GLSEN), The 2017 National School Climate Survey: The
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth
in Our Nation's Schools (2018).
---------------------------------------------------------------------------
A survey of students in grades nine through 12 found that
lesbian, gay, and bisexual (``LGB'') students were more likely to say
that they experienced bullying than heterosexual students: One-third of
LGB students said that they had been bullied on school property in the
past year compared to 17 percent of heterosexual students; 27 percent
of LGB students reported that they had been electronically bullied in
the past year compared to 13 percent of heterosexual students; nearly
half of middle and high school students report being sexually harassed,
with harassment especially extensive among LGBTQ students, causing
nearly one-third to say that they felt unsafe or uncomfortable enough
to miss school.\361\
---------------------------------------------------------------------------
\361\ Commenters cited: Laura Kann et al., Youth Risk Behavior
Surveillance--United States, 2017, 67 Morbidity & Mortality Weekly
Report 8 (Jun. 15, 2018).
---------------------------------------------------------------------------
Seventy-three percent of LGBTQ college students have been
sexually harassed, compared to 61 percent of non-LGBTQ students; \362\
75.2 percent of undergraduate and 69.4 percent of graduate/professional
students who identify as transgender, queer, and gender nonconforming
reported being sexually harassed, compared with 62 percent of cisgender
female undergraduates, 43 percent of cisgender male undergraduates, 44
percent of cisgender female graduate students, and 30 percent of
cisgender male graduate students.\363\
---------------------------------------------------------------------------
\362\ Commenters cited: American Association of University Women
Educational Foundation, Drawing the Line: Sexual Harassment on
Campus (2005).
\363\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects LGBTQ individuals in
significant numbers. When sexual harassment constitutes sex
discrimination covered by Title IX, the final regulations hold schools
accountable for responding in ways that restore or preserve a
complainant's equal access to education.
Changes: None.
Prevalence Data--Persons of Color
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
against persons of color, including as follows:
Women who have intersecting identities, for example women
who are women of color and LGBTQ, experience certain types of
harassment, including gender and sexual harassment, at even greater
rates than other women, and often experience sexual harassment as a
manifestation of both gender and other kinds of discrimination.\364\ A
survey of 1,003 girls between the ages of 14 and 18, with a focus on
Black, Latina, Asian, Native American, and LGBTQ individuals, found
that 31 percent had
[[Page 30079]]
survived sexual assault.\365\ Of women who identify as multiracial,
32.3 percent are sexually assaulted.\366\
---------------------------------------------------------------------------
\364\ Commenters cited: National Academies of Science,
Engineering, and Medicine, Sexual Harassment of Women: Climate,
Culture, and Consequences in Academic Sciences, Engineering, and
Medicine (Frasier F. Benya et al. eds., 2018).
\365\ Commenters cited: National Women's Law Center (NWLC), Let
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting
(2017).
\366\ Commenters cited: Matthew J. Breiding et al., Prevalence
and Characteristics of Sexual Violence, Stalking, and Intimate
Partner Violence Victimization--National Intimate Partner and Sexual
Violence Survey, United States, 2011, 63 Morbidity & Mortality
Weekly Report 8 (Sept. 5, 2014).
---------------------------------------------------------------------------
Of Black women in school, 16.5 percent reported being
raped in high school and 36 percent were raped in college.\367\ Among
Black women, 21.2 percent are survivors of sexual assault.\368\ Sixty
percent of Black girls are sexually harassed before the age of 18.\369\
---------------------------------------------------------------------------
\367\ Commenters cited: Carolyn M. West & Kalimah Johnson,
Sexual Violence in the Lives of African American Women: Risk,
Response, and Resilience, VAWnet.org: National Online Resource
Center on Domestic Violence (2013).
\368\ Centers for Disease Control and Prevention, National
Center for Injury Prevention and Control, STOP SV: A Technical
Package to Prevent Sexual Violence (2016).
\369\ Commenters cited: Hannah Giorgis, Many women of color
don't go to the police after sexual assault for a reason, The
Guardian (Mar. 25, 2015).
---------------------------------------------------------------------------
Among Hispanic women, 13.6 percent are survivors of sexual
assault.\370\
---------------------------------------------------------------------------
\370\ Centers for Disease Control and Prevention, National
Center for Injury Prevention and Control, STOP SV: A Technical
Package to Prevent Sexual Violence (2016).
---------------------------------------------------------------------------
In a 2015 study of 313 participants of Korean, Chinese,
Filipino, and other Asian backgrounds: 53.5 percent of female
participants reported experiencing sexual violence, including forced
sexual relations (12.4 percent), sexual harassment (17.3 percent),
unwanted touching (31.7 percent), or pressure to have unwanted sex
(25.2 percent); out of all participants, 38.7 percent said they knew
someone who had experienced sexual violence, and, of those, 70 percent
said they knew two or more survivors. Of male participants, 8.1 percent
reported experiencing sexual violence; 56.1 percent of the survivors
first experienced sexual violence when they were ten to 19 years old
and 26.3 percent when they were in their twenties.\371\
---------------------------------------------------------------------------
\371\ Commenters cited: KAN-WIN, Community Survey Report on
Sexual Violence in the Asian American/Immigrant Community (2017),
http://www.kanwin.org/downloads/sareport.pdf.
---------------------------------------------------------------------------
Of Asian Pacific Islander women, 23 percent experienced
sexual violence. Of Asian Pacific Islander men, nine percent
experienced sexual violence.\372\
---------------------------------------------------------------------------
\372\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): 2010-
2012 State Report (2017).
---------------------------------------------------------------------------
Of women who identify as American Indian or Alaska Native,
over one-quarter have experienced rape and 56 percent have experienced
rape, physical violence, or stalking by an intimate partner in their
lifetime.\373\ Seven out of every 1,000 American Indian (including
Alaska Native) women experience rape or sexual assault, compared to two
out of every 1,000 women of all races.\374\
---------------------------------------------------------------------------
\373\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): 2010
Summary Report (Nov. 2011).
\374\ Commenters cited: U.S. Department of Justice, Office of
Justice Programs, Bureau of Justice Statistics, American Indians and
Crime (1999).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects persons of color, particularly
girls and women of color and persons with intersecting identities, in
significant numbers. When sexual harassment constitutes sex
discrimination covered by Title IX, the final regulations hold schools
accountable for responding in ways that restore or preserve a
complainant's equal access to education.
Changes: None.
Prevalence Data--Individuals With Disabilities
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the prevalence of sexual harassment
against individuals with disabilities, including as follows:
Students with disabilities are 2.9 times more likely than
their peers to be sexually assaulted.\375\ As many as 40 percent of
women with disabilities experience sexual assault or physical violence
in their lifetimes.\376\ Almost 20 percent of women with disabilities
will have undesired sex with an intimate partner.\377\
---------------------------------------------------------------------------
\375\ Commenters cited: National Women's Law Center (NWLC), Let
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting
(2017).
\376\ Commenters cited: University of Michigan Sexual Assault
Awareness and Prevention Center, Sexual Assault and Survivors with
Disabilities, https://sapac.umich.edu/article/56.
\377\ Commenters cited: Disabled World, People with Disabilities
and Sexual Assault (2012), https://www.disabled-world.com/disability/sexuality/assaults.php.
---------------------------------------------------------------------------
An exploratory study conducted to learn the rates of abuse
among university students who have identified as having a disability
found: 22 Percent of participants reported some form of abuse over the
last year and nearly 62 percent had experienced some form of physical
or sexual abuse before the age of 17; only 27 percent reported the
incident, and 40 percent of students with disabilities who reported
abuse in the past year said they had little or no knowledge of abuse-
related resources.\378\
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\378\ Commenters cited: Patricia A. Findley et al., Exploring
the experiences of abuse of college students with disabilities, 31
Journal of Interpersonal Violence 17 (2015).
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More than 90 percent of all people with developmental
disabilities will experience sexual assault.\379\ Forty-nine percent of
people with developmental disabilities who are victims of sexual
violence will experience ten or more abusive incidents.\380\ Thirty
percent of men and 80 percent of women with intellectual disabilities
have been sexually assaulted.\381\
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\379\ Commenters cited: University of Michigan Sexual Assault
Awareness and Prevention Center, Sexual Assault and Survivors with
Disabilities, https://sapac.umich.edu/article/56.
\380\ Commenters cited: Valenti-Hein & Schwartz, The Sexual
Abuse Interview for Those with Developmental Disabilities (James
Stanfield Co. 1995).
\381\ Commenters cited: Disabled World, People with Disabilities
and Sexual Assault (2012), https://www.disabled-world.com/disability/sexuality/assaults.php.
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Individuals with intellectual disabilities are sexually
assaulted and raped at more than seven times the rate of individuals
without disabilities; women with intellectual disabilities are 12 times
more likely to be sexually assaulted or raped than women without
disabilities.\382\
---------------------------------------------------------------------------
\382\ Commenters cited: Joseph Shapiro, The Sexual Assault
Epidemic No One Talks About, NPR (Jan. 8, 2018).
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Fifty-four percent of boys who are deaf and 25 percent of
girls who are deaf, have been sexually assaulted, compared to ten
percent of boys who are hearing and 25 percent of girls who are
hearing.\383\
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\383\ Commenters cited: Disabled World, People with Disabilities
and Sexual Assault (2012), https://www.disabled-world.com/disability/sexuality/assaults.php.
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Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects individuals with disabilities
in significant numbers. When sexual harassment constitutes sex
discrimination covered by Title IX, the final regulations hold schools
accountable for responding in ways that restore or preserve a
complainant's equal access to education.
Changes: None.
Prevalence Data--Immigrants
Comments: Commenters referred the Department to data showing that
immigrant girls and young women are almost twice as likely as their
non-
[[Page 30080]]
immigrant peers to have experienced incidents of sexual assault.\384\
---------------------------------------------------------------------------
\384\ Commenters cited: National Immigrant Women's Advocacy
Project, Empowering Survivors: Legal Rights of Immigrant Victims of
Sexual Assault (Leslye Orloff ed., 2013), https://www.evawintl.org/library/documentlibraryhandler.ashx?id=456 (using the term
``immigrant'' to include documented persons, refugees and migrants,
others present in the United States on temporary visas, such as
visitors, students, temporary workers, as well as undocumented
individuals.).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicates that sexual harassment affects immigrant girls and women in
significant numbers. When sexual harassment constitutes sex
discrimination covered by Title IX, the final regulations hold schools
accountable for responding in ways that restore or preserve a
complainant's equal access to education.
Changes: None.
Impact Data
Comments: Many commenters referred the Department to statistics,
data, research, and studies showing the impact of sexual harassment on
victims, including as follows:
Among students who are harassed, a vast majority of
students (87 percent) report that the harassment had a negative effect
on them, causing 37 percent of girls to not want to go to school,
versus 25 percent of boys; female students were more likely in every
case to say they continued to feel detrimental effects for ``quite a
while'' compared with male students.\385\
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\385\ Commenters cited: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------
Approximately half of LGBTQ students who said that they
experienced frequent or severe verbal harassment because of their
sexual orientation or gender identity missed school at least once a
month, and about 70 percent who said they experienced frequent or
severe physical harassment missed school more than once a month.\386\
---------------------------------------------------------------------------
\386\ Commenters cited: Gay, Lesbian and Straight Education
Network (GLSEN), The 2017 National School Climate Survey: The
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth
in Our Nation's Schools (2018).
---------------------------------------------------------------------------
In one study of transgender students, of those who faced
harassment, 16 percent left college or vocational school because of the
severity of the mistreatment they faced; and 17 percent of people who
were out as transgender when they were K-12 students said that they
experienced such severe harassment as a student that they had to leave
school as a result.\387\
---------------------------------------------------------------------------
\387\ Commenters cited: National Center for Transgender
Equality, The Report of the 2015 U.S. Transgender Survey (Dec.
2016).
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The negative emotional effects of sexual harassment take a
toll on girls' education, resulting in decreased productivity and
increased absenteeism from school; in the 2010-2011 school year, 18
percent of abused children and teens did not want to go to school, 13
percent found it hard to study, 17 percent had trouble sleeping, and
eight percent stayed home from school.\388\
---------------------------------------------------------------------------
\388\ Commenters cited: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------
The impact of sexual harassment on students occurs at all
grade levels and includes lowered motivation to attend class, paying
less attention in class, lower grades, avoiding teachers with a
reputation for engaging in harassment, dropping classes, changing
majors, changing advisors, avoiding informal activities that enhance
the educational experience, feeling less safe on campus, and dropping
out of school.\389\
---------------------------------------------------------------------------
\389\ Commenters cited: National Academies of Science,
Engineering, and Medicine, Sexual Harassment of Women: Climate,
Culture, and Consequences in Academic Sciences, Engineering, and
Medicine (Frasier F. Benya et al. eds., 2018).
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Twenty percent of children and youth in schools have an
identified mental health problem; \390\ bullying, sexual harassment,
and sexual assault contribute to mental health challenges for
individuals when left unreported.
---------------------------------------------------------------------------
\390\ Commenters cited: Amy J. Houtrow & Megumi J. Okumura,
Pediatric Mental Health Problems and Associated Burden on Families,
6 Vulnerable Children & Youth Studies 3 (2011).
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Adverse childhood experiences can contribute significantly
to negative adult physical and mental health outcomes and affect more
than 60 percent of adults; every instance of sexual harassment against
women undermines their potential for long-term economic productivity
and, by extension, the productivity of their family, their community,
and the United States.\391\
---------------------------------------------------------------------------
\391\ Commenters cited: American Academy of Pediatrics, Adverse
Childhood Experiences and the Lifelong Consequences of Trauma
(2014), https://www.aap.org/en-us/Documents/ttb_aces_consequences.pdf.
---------------------------------------------------------------------------
Secondary victimization and institutional betrayal have
been shown to exacerbate trauma symptoms following a sexual assault,
including increased anxiety, and more than 40 percent of college
students who were sexually victimized reported experiences of
institutional betrayal.\392\
---------------------------------------------------------------------------
\392\ Commenters cited: Carly Parnitzke Smith & Jennifer J.
Freyd, Dangerous Safe Havens: Institutional Betrayal Exacerbates
Sexual Trauma, 26 Journal of Traumatic Stress 1 (2013); John Briere
& Carol E. Jordan, Violence Against Women: Outcome Complexity and
Implications for Assessment and Treatment, 19 Journal of
Interpersonal Violence 11 (2004).
---------------------------------------------------------------------------
Being a victim of sexual assault can cause both immediate
and long-term physical and mental health consequences; at least 89
percent of victims face emotional and physical consequences.\393\
Approximately 70 percent of rape or sexual assault victims experience
moderate to severe distress, a larger percentage than for any other
violent crime.\394\ The dropout rate of sexual harassment victims is
much higher than percentage of college students who drop out of school;
34 percent of victims dropout of college.\395\ Many schools have
expelled survivors when their grades suffer as a result of trauma.\396\
---------------------------------------------------------------------------
\393\ Commenters cited: Andrew Van Dam, Less than 1% of rapes
lead to felony convictions. At least 89% of victims face emotional
and physical consequences, The Washington Post (Oct. 6, 2018).
\394\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Special Report:
Socio-emotional impact of violent crime (2014).
\395\ Commenters cited: Cecilia Mengo & Beverly M. Black,
Violence Victimization on a College Campus: Impact on GPA and School
Dropout, 18 Journal of Coll. Student Retention: Research, Theory &
Practice 2 (2015).
\396\ Commenters cited: Alexandra Brodsky, How much does sexual
assault cost college students every year, The Washington Post (Nov.
18, 2014).
---------------------------------------------------------------------------
Eighty-one percent of women and 35 percent of men report
significant short- or long-term impacts of sexual assault, such as
post-traumatic stress disorder (PTSD); women who are sexually assaulted
or abused are over twice as likely to have PTSD, depression, and
chronic pain following the violence compared to non-abused women.\397\
Thirty percent of the college women who said they had been raped
contemplated suicide after the incident.\398\ Male victims of sexual
abuse experience problems such as depression, suicidal ideation,
anxiety, sexual dysfunction, loss of self-esteem, and long-term
relationship difficulties.\399\
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\397\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): 2010
Summary Report (Nov. 2011).
\398\ Commenters cited: National Victim Center and Crime Victims
Research and Treatment Center, Rape in America: A Report to the
Nation (1992).
\399\ Commenters cited: Lara Stemple, The Sexual Victimization
of Men in America: New Data Challenge Old Assumptions, 104 Am. J. of
Pub. Health 6 (2014).
---------------------------------------------------------------------------
Rape victims suffer long-term negative outcomes including
PTSD, depression, generalized anxiety, eating disorders, sexual
dysfunction, alcohol and illicit drug use, nonfatal suicidal behavior
and suicidal threats, attempted and completed suicide, physical
symptoms in the absence of medical conditions, low self-esteem, self-
blame, and severe preoccupations with physical appearances; short-term
negative impacts include shock, denial,
[[Page 30081]]
fear, confusion, anxiety, withdrawal, shame or guilt, nervousness,
distrust of others, symptoms of PTSD, emotional detachment, sleep
disturbances, flashbacks, and mental replay of the assault.\400\
---------------------------------------------------------------------------
\400\ Commenters cited: Nicole P. Yuan, The Psychological
Consequences of Sexual Trauma, VAWnet.org: National Resource Center
on Domestic Violence (2006); Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control,
Division of Violence Prevention, Preventing Sexual Violence (last
reviewed by the CDC on Jan. 17, 2020), https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fviolenceprevention%2Fsexualviolence%2Fconsequences.html; Rape, Abuse, & Incest
National Network (RAINN), Victims of Sexual Violence: Statistics,
https://www.rainn.org/statistics/victims-sexual-violence.
---------------------------------------------------------------------------
If a sexual assault survivor ends up dropping out of high
school, the survivor will earn 84 percent less than a typical graduate
from a four-year college; student debt is a greater burden for low
income students who drop out, as those students will earn significantly
less; and dropping out can have dire consequences as the lack of a high
school diploma or General Equivalency Diploma (GED) directly correlates
with higher risks of experiencing homelessness.\401\
---------------------------------------------------------------------------
\401\ Commenters cited: Eduardo Porter, Dropping Out of College,
and Paying the Price, The New York Times (June 26, 2013).
---------------------------------------------------------------------------
Discussion: The data referred to by commenters, among other data,
indicate that many sexual harassment victims suffer serious, negative
consequences. Because sexual harassment causes serious detriment to
victims, when sex discrimination covered by Title IX takes the form of
sexual harassment, the final regulations require recipients to respond
to complainants by offering supportive measures (irrespective of
whether the complainant files a formal complaint), and when a
complainant chooses to file a formal complaint, requiring remedies for
a complainant when a respondent is found responsible. Supportive
measures, and remedies, are designed to restore or preserve equal
access to education.
Recognizing that Title IX governs the conduct of recipients
themselves, the Department believes that the final regulations
appropriately prescribe the actions recipients must take in response to
reports and formal complaints of sexual harassment, so that
complainants are not faced with institutional betrayal from a
recipient's refusal to respond, or non-supportive response.
Changes: None.
Cost Data
Comments: Many commenters referred to data showing that rape and
sexual assault survivors often incur significant financial costs such
as medical and psychological treatment, lost time at work, and leaves
of absence from school, including as follows:
The average lifetime cost of being a rape victim is
estimated at $122,461, which calculates to roughly $3.1 trillion of
lifetime costs across the 25 million reported victims in the United
States.\402\ A single rape costs a victim between $87,000 to
$240,776.\403\
---------------------------------------------------------------------------
\402\ Commenters cited: Cora Peterson et al., Lifetime Economic
Burden of Rape Among U.S. Adults, 52 Am. J. Preventive Med. 6
(2017).
\403\ Commenters cited: Ted R. Miller et al., Victim Costs of
Violent Crime and Resulting Injuries, 12 Health Affairs 4 (1993).
---------------------------------------------------------------------------
More than one-fifth of intimate partner rape survivors
lose an average of eight days of paid work per assault, and that does
not include the subsequent job loss, psychological trauma, and cost (of
treatment and to society at large).\404\
---------------------------------------------------------------------------
\404\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, Costs
of Intimate Partner Violence Against Women in the United States
(2003).
---------------------------------------------------------------------------
Many commenters asserted that the proposed rules would exacerbate
the economic costs suffered by sexual assault survivors.
Discussion: The Department understands that sexual assault
survivors often incur significant financial costs, both in the short-
term and long-term. The final regulations require recipients to offer
supportive measures to complainants and provide remedies to
complainants when a fair grievance process has determined that a
respondent is responsible for sexual harassment. Supportive measures
and remedies are designed to restore or preserve equal access to
education. The Department believes these responses by recipients will
help complainants avoid costs that flow from loss of educational
opportunities.
Changes: None.
Reporting Data
Comments: Many commenters referred the Department to statistics,
data, research, and studies regarding rates of reporting of sexual
harassment and sexual violence, and reasons why some victims do not
report their victimization to authorities, including as follows:
Only about half of all adolescent victims of peer-on-peer
sexual assault will tell anyone about having been sexually harassed or
assaulted and only six percent will actually report the incident to an
official who might be able help them. Such underreporting may be due to
individual student fears of reporting to school authorities or law
enforcement; procedural gaps in how institutions record or respond to
incidents; a reluctance on the part of institutions to be associated
with these problems; or a combination of these factors.\405\
---------------------------------------------------------------------------
\405\ Commenters cited: Amy M. Young et al., Adolescents'
Experiences of Sexual Assault by Peers: Prevalence and Nature of
Victimization Occurring Within and Outside of School, 38 Journal of
Youth & Adolescence 1072 (2009).
---------------------------------------------------------------------------
At least 35 percent of college students who experience
sexual harassment do not report it \406\ because shame, fear of
retaliation, and fear of not being believed prevent victims from coming
forward. Only five to 28 percent of sexual harassment incidents are
reported to Title IX offices; less than 30 percent of the most serious
incidents of nonconsensual sexual contact are reported to an
organization or agency like a university's Title IX office or law
enforcement; the most common reason for not reporting was the victim
did not consider the incident serious enough, while other reasons
included embarrassment, shame, feeling it would be too emotionally
difficult, and lack of confidence that anything would be done about
it.\407\
---------------------------------------------------------------------------
\406\ Commenters cited: American Association of University Women
Educational Foundation, Drawing the Line: Sexual Harassment on
Campus (2005).
\407\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------
Survivors often do not report cases of sexual violence to
their schools because they do not know how to report on their campus,
because of fear of being disbelieved, or because of fear of having
their assault not taken seriously.\408\ Some survivors choose not to
report sexual violence to authorities for a multitude of reasons, one
of which is a fear that their perpetrator will retaliate or escalate
the violence.\409\
---------------------------------------------------------------------------
\408\ Commenters cited: Kathryn J. Holland & Lilia M. Cortina,
``It happens to girls all the time'': Examining sexual assault
survivors' reasons for not using campus supports, 59 Am. J. of
Community Psychol. 1-2 (2017).
\409\ Commenters cited: Marjorie R. Sable et al., Barriers to
Reporting Sexual Assault for Women and Men: Perspectives of College
Students, 55 Journal of Am. Coll. Health 3 (2006); Ruth E. Fleury et
al., When Ending the Relationship Does Not End the Violence, 6
Violence Against Women 12 (2000); T.K. Logan & Robert Walker,
Stalking: A Multidimensional Framework for Assessment and Safety
Planning, 18 Trauma, Violence, & Abuse 2 (2017).
---------------------------------------------------------------------------
Research shows that students are deterred from reporting
sexual harassment and assault for the following reasons: Policies that
compromise or restrict the victim's ability to make informed choices
about how to proceed; concerns about confidentiality; a desire to avoid
public disclosure; uncertainty
[[Page 30082]]
as to whether they can prove the sexual violence or whether the
perpetrator will be punished; campus policies on drug and alcohol use;
policies requiring victims to participate in adjudication; trauma
response; the desire to avoid the perceived or real stigma of having
been victimized.\410\
---------------------------------------------------------------------------
\410\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute of Justice, Sexual Assault on
Campus: What Colleges and Universities Are Doing About It (2005).
---------------------------------------------------------------------------
According to one study, 20 percent of students ages 18-24
did not report assault because they feared reprisal, nine percent
believed the police would not or could not do anything to help, and
four percent reported, but not to police.\411\
---------------------------------------------------------------------------
\411\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Special Report: Rape
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
---------------------------------------------------------------------------
One national survey found that of 770 rapes on campus
during the 2014-2015 academic year, only 40 were reported to
authorities under the Clery Act guidelines.\412\
---------------------------------------------------------------------------
\412\ Commenters cited: New Jersey Task Force on Campus Sexual
Assault, 2017 Report and Recommendations (June 2017).
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Campus sexual assault is grossly underreported with only
two percent of incapacitated sexual assault survivors and 13 percent of
forcible rape survivors reporting to crisis or healthcare centers and
even fewer to law enforcement.\413\ About 65 percent of surveyed rape
victims reported the incident to a friend, a family member, or roommate
but only ten percent reported to police or campus officials.\414\
---------------------------------------------------------------------------
\413\ Commenters cited: National Sexual Violence Resource
Center: Info and Stats for Journalists, Statistics About Sexual
Violence (2015) (citing National Institute of Justice, The Campus
Sexual Assault (CSA) Study: Final Report (2007)).
\414\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Office for Victims of Crime, 2017 National Crime
Victims' Rights Week Resource Guide: Crime and Victimization Fact
Sheets (2017).
---------------------------------------------------------------------------
Male victims often resist reporting due to contemporary
social narratives, including jokes about prison rape, the notion that
``real men'' can protect themselves, the fallacy that gay male victims
likely ``asked for it,'' and the belief that reporting itself is ``un-
masculine.'' \415\
---------------------------------------------------------------------------
\415\ Commenters cited: Lara Stemple, The Sexual Victimization
of Men in America: New Data Challenge Old Assumptions, 104 Am. J. of
Pub. Health 6 (2014).
---------------------------------------------------------------------------
Some students--especially students of color, undocumented
students, LGBTQ students, and students with disabilities--are less
likely than their peers to report sexual assault to the police due to
increased risk of being subjected to police violence or
deportation.\416\ Survivors of color may not want to report to the
police and add to the criminalization of men and boys of color; for
these students, schools are often the only avenue for relief. Many
LGBTQ students and students of color may feel mistrustful, unwelcomed,
invisible, or discriminated against, which makes reporting their
experience of sexual assault even more difficult.\417\
---------------------------------------------------------------------------
\416\ Commenters cited: Jennifer Medina, Too Scared to Report
Sexual Abuse. The Fear: Deportation, The New York Times (April 30,
2017); National Center for Transgender Equality, The Report of the
2015 U.S. Transgender Survey (Dec. 2016); Audrey Chu, I Dropped Out
of College Because I Couldn't Bear to See My Rapist on Campus, Vice
(Sept. 26, 2017).
\417\ Commenters cited: L. Ebony Boulware, Race and trust in the
health care system, 118 Pub. Health Reports 4 (2003).
---------------------------------------------------------------------------
LGBTQ students also experience unique barriers that
prevent them from reporting these incidents: \418\ The most common
reason students gave for their failure to report were doubts that the
school staff would do anything about the harassment; almost two-thirds
(60 percent) of students who did report their harassment said that
school staff did nothing in response or just told the students to
ignore the harassment; and more than one in five students were told to
change their behavior to avoid harassment, such as changing the way
they dress or acting less ``gay.'' Another reason LGBTQ students gave
for not reporting was fear they would be ``outed'' to the school staff
or their families, or face additional violence from their harasser.
Over 40 percent of LGBTQ students stated that they did not report
because they were not comfortable with school staff, often because of
the belief that staff was discriminatory or complicit in the
harassment.
---------------------------------------------------------------------------
\418\ Commenters cited: Gay, Lesbian and Straight Education
Network (GLSEN), The 2017 National School Climate Survey: The
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth
in Our Nation's Schools (2018).
---------------------------------------------------------------------------
Sixty-nine percent of sexual abuse survivors said that
police officers discouraged them from filing a report and one-third of
survivors had police refuse to take their report; 80 percent of sexual
assault survivors are reluctant to seek help and 91 percent report
feeling depressed after their interaction with law enforcement.\419\
---------------------------------------------------------------------------
\419\ Commenters cited: Rebecca Campbell, Survivors' Help-
Seeking Experiences with the Legal and Medical Systems, 20 Violence
& Victims 1 (2005).
---------------------------------------------------------------------------
Native American women are reluctant to report crimes
because of the belief that nothing will be done; according to a 2010
study, the government declined to prosecute 67 percent of sexual abuse,
homicide, and other violent crimes against Native American women.\420\
---------------------------------------------------------------------------
\420\ Commenters cited: Gender Based Violence and Intersecting
Challenges Impacting Native American & Alaskan Village Communities,
VAWnet.org: National Online Resource Center on Domestic Violence
(2016), https://vawnet.org/sc/gender-based-violence-and-intersecting-challenges-impacting-native-american-alaskan-village.
---------------------------------------------------------------------------
Students with disabilities are less likely to be believed
when they report sexual harassment experiences and often have greater
difficulty describing the harassment they experience, because of
stereotypes that people with disabilities are less credible or because
they may have greater difficulty describing or communicating about the
harassment they experienced, particularly if they have a cognitive or
developmental disability.\421\
---------------------------------------------------------------------------
\421\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute for Justice, The Many
Challenges Facing Sexual Assault Survivors with Disabilities (2017).
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' concerns that
sexual harassment is underreported and references to data explaining
the variety of factors that contribute to complainants choosing not to
report incidents of sexual harassment.
We have revised the final regulations in several ways in order to
provide students, employees, and third parties with clear, accessible
reporting channels, predictability as to how a recipient must respond
to a report, informed options on how a complainant may choose to
proceed, and requirements that Title IX personnel serve impartially,
free from bias. Under the final regulations, any person may report
sexual harassment to trigger the recipient's response obligations, and
the complainant (i.e., the person alleged to be the victim) retains the
right to receive available supportive measures irrespective of whether
the complainant also decides to file a formal complaint that initiates
a grievance process.
To emphasize that any person may report sexual harassment (not just
the complainant), we have revised Sec. 106.8 to state that any person
may report sexual harassment (whether or not the person reporting is
the person alleged to be the victim of conduct that could constitute
sexual harassment) using the contact information listed for the Title
IX Coordinator, which must include an office address, telephone number,
and email address, or by any other means that results in the Title IX
Coordinator receiving the person's verbal or written report. In
elementary and secondary schools, Sec. 106.30 defining ``actual
knowledge'' now provides that notice of sexual harassment to any
employee triggers the recipient's response
[[Page 30083]]
obligations, and in postsecondary institutions, students retain more
autonomy and control over deciding whether, when, or to whom to
disclose a sexual harassment experience without automatically
triggering a report to the Title IX office.\422\ The Department
therefore aims to give every complainant (i.e., person alleged to be
the victim) and all third parties clear reporting channels (which
differ for postsecondary institution students than for elementary and
secondary school students), and predictability as to the recipient's
response obligations (i.e., under revised Sec. 106.44(a) the Title IX
Coordinator must contact the complainant to discuss supportive
measures, consider the complainant's wishes with respect to supportive
measures, and explain the option for filing a formal complaint).
---------------------------------------------------------------------------
\422\ See discussion in the ``Actual Knowledge'' subsection of
the ``Adoption and Adaption of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------
Every Title IX Coordinator must be free from conflicts of interest
and bias and, under revised Sec. 106.45(b)(1)(iii), trained in how to
serve impartially and avoid prejudgment of the facts at issue. No
recipient is permitted to ignore a sexual harassment report, regardless
of the identity of the person alleged to have been victimized, and
whether or not a school administrator might be inclined to apply
harmful stereotypes against believing complainants generally or based
on the complainant's personal characteristics or identity. The
Department will enforce the final regulations vigorously to ensure that
each complainant receives the response owed to them by the recipient.
We have added Sec. 106.71 prohibiting retaliation against any
individual exercising Title IX rights (including the right to refuse to
participate in a grievance process). When complainants do decide to
initiate a grievance process, or participate in a grievance process,
recipients also may choose to offer informal resolution processes as
alternatives to a full investigation and adjudication of the formal
complaint, with the voluntary consent of both the complainant and
respondent, which may encourage some complainants to file a formal
complaint where they may have been reluctant to do so if a full
investigation and adjudication was the only option. Where a respondent
is found responsible for sexual harassment as defined in Sec. 106.30,
the recipient must provide remedies to the complainant designed to
restore or preserve the complainant's equal access to education. In
response to comments concerned that such remedies may not be effective,
the final regulations expressly require the Title IX Coordinator to be
responsible for the effective implementation of remedies.
The final regulations present a consistent, predictable framework
for when and how a recipient must respond to Title IX sexual
harassment. Although reporting sexual harassment is often inherently
difficult, complainants who desire supportive measures, or factual
investigation and adjudication, or both, may expect prompt, meaningful
responses from their schools, colleges, or universities.
Changes: We have revised Sec. 106.8 to state that any person may
report sexual harassment (whether or not the person reporting is the
person alleged to be the victim of sexual harassment) by using the
contact information listed for the Title IX Coordinator, which must
include an office address, telephone number, and email address; reports
may be made at any time, including during non-business hours, by using
the telephone number or email address or by mailing to the office
address. We have revised Sec. 106.30 defining ``actual knowledge'' to
provide that notice of sexual harassment to any elementary and
secondary school employee constitutes actual knowledge to the
recipient, and to state that ``notice'' includes but is not limited to
reporting to the Title IX Coordinator as described in Sec. 106.8(a).
We have revised Sec. 106.44(a) to specifically require the Title
IX Coordinator to contact the complainant to discuss supportive
measures, consider the complainant's wishes with respect to supportive
measures, and explain the process for filing a formal complaint. We
have revised Sec. 106.45(b)(1)(iii) to require that Title IX personnel
be trained on how to serve impartially, without prejudgment of the
facts. We have added Sec. 106.71 prohibiting retaliation against any
person exercising rights under Title IX, and Sec. 106.45(b)(7)(iv)
requiring Title IX Coordinators to be responsible for effective
implementation of any remedies.
Stereotypes/Punishment for ``Lying''
Comments: Some commenters asserted that the proposed rules will be
particularly harmful to women and girls of color, who experience
explicit and implicit bias in the investigation of claims of sexual
harassment and assault. Commenters argued that due to harmful race and
sex stereotypes that label women of color as ``promiscuous,'' schools
are more likely to ignore, blame, and punish women and girls of color
who report sexual harassment.\423\ Student concerns about reporting are
especially common among members of historically marginalized
communities, who are often more likely to be disbelieved or even
punished by schools for reporting sexual assault. Commenters stated
that Black women and girls are commonly stereotyped as ``Jezebels,''
Latina women and girls as ``hot-blooded,'' Asian American and Asian
Pacific Islander women and girls as ``submissive, and naturally
erotic,'' Native American women and girls as ``sexually violable as a
tool of war and colonization,'' and multiracial women and girls as
``tragic and vulnerable, historically, products of sexual and racial
domination.'' Commenters stated that schools are also more likely to
punish Black women and girls by labeling them as aggressors based on
stereotypes that they are ``angry'' and ``aggressive.'' Commenters
pointed out that the Department's 2013-14 Civil Rights Data Collection
shows that Black girls are five times more likely than white girls to
be suspended in K-12, and that while Black girls represented 20 percent
of all preschool enrolled students, they were 54 percent of preschool
students who were suspended. Commenters argued that schools should
require all officials involved in Title IX proceedings to attend
implicit bias trainings.
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\423\ Commenters cited: Nancy Chi Cantalupo, And Even More of Us
Are Brave: Intersectionality & Sexual Harassment of Women Students
of Color, 42 Harv. J. of L. & Gender 1 (2018); National Women's Law
Center & Girls for Gender Equity, Listening Session on the Needs of
Young Women of Color (2015); Sonja C. Tonnesen, Commentary: ``Hit It
and Quit It'': Responses to Black Girls' Victimization in School, 28
Berkeley J. of Gender, L. & Justice 1 (2013); NAACP Legal Defense
and Educational Fund, Inc. & National Women's Law Center, Unlocking
Opportunity for African American Girls: A Call to Action for
Educational Equity (2014).
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One commenter argued that the negative effects of harmful
stereotypes are exacerbated by the fact that the proposed rules would
allow schools to punish students whom the school believes are lying,
and this could have a significant effect on survivors of color.
Commenters asserted that many Black girls who defend themselves against
perpetrators are often misidentified as the aggressors. Similarly,
commenters asserted that the proposed rules would allow a school to
punish any person, including a witness, who ``knowingly provides false
information'' to the school, which makes it even easier for schools to
punish girls and women of color who report sexual harassment for
``lying'' about it, when such a conclusion by the school is often based
[[Page 30084]]
on negative stereotypes rather than the truth.
Commenters also expressed concern that many students who report
sexual assault and other forms of sexual harassment to their school
face discipline instead of support: For example, schools punish
complainants for engaging in so-called ``consensual'' sexual activity;
for engaging in premarital sex; for defending themselves against their
harassers; or for merely talking about their assault with other
students in violation of a ``gag order'' or nondisclosure agreement
imposed by their school.
Discussion: The Department shares the concerns of commenters who
asserted, and cited to data and articles showing, that some
complainants, including or especially girls of color, face school-level
responses to their reports of sexual harassment infected by bias,
prejudice, or stereotypes. In response to such concerns, the Department
adds to Sec. 106.45(b)(1)(iii), prohibiting Title IX Coordinators,
investigators, and decision-makers, and persons who facilitate informal
resolution processes from having conflicts of interest or bias against
complainants or respondents generally, or against an individual
complainant or respondent, training that also includes ``how to serve
impartially, including by avoiding prejudgment of the facts at issue,
conflicts of interest, and bias.'' No complainant reporting Title IX
sexual harassment or respondent defending against allegations of sexual
harassment should be ignored or be met with prejudgment, and the final
regulations require recipients to meet response obligations impartially
and free from bias. The Department will vigorously enforce the final
regulations in a manner that holds recipients responsible for
responding to complainants, and treating all parties during any Sec.
106.45 grievance process, impartially without prejudgment of the facts
at issue or bias, including bias against an individual's sex, race,
ethnicity, sexual orientation, gender identity, disability or
immigration status, financial ability, or other characteristic. Any
person can be a complainant, and any person can be a respondent, and
every individual is entitled to impartial, unbiased treatment
regardless of personal characteristics. The Department declines to
specify that training of Title IX personnel must include implicit bias
training; the nature of the training required under Sec.
106.45(b)(1)(iii) is left to the recipient's discretion so long as it
achieves the provision's directive that such training provide
instruction on how to serve impartially and avoid prejudgment of the
facts at issue, conflicts of interest, and bias, and that materials
used in such training avoid sex stereotypes.
In response to commenters' concerns that biases and stereotypes may
lead a recipient to punish students reporting sexual harassment
allegations, the Department adds Sec. 106.71(a) to expressly prohibit
retaliation and specifically state that intimidation, threats,
coercion, discrimination, or charging an individual with a code of
conduct violation, arising out of the same facts or circumstances as a
report or formal complaint of sexual harassment, for the purpose of
interfering with any right or privilege secured by Title IX,
constitutes retaliation. This provision draws recipients' attention to
the fact that punishing a complainant with non-sexual harassment
conduct code violations (e.g., ``consensual'' sexual activity when the
complainant has reported the activity to be nonconsensual, or underage
drinking, or fighting back against physical aggression) is retaliation
when done for the purpose of deterring the complainant from pursuing
rights under Title IX. The Department notes that this section applies
to respondents as well.
In further response to commenters' concerns about parties being
unfairly punished for lying, Sec. 106.71(b)(2) provides that charging
an individual with a code of conduct violation for making a materially
false statement in bad faith in the course of a grievance proceeding
does not constitute retaliation but a determination regarding
responsibility, alone, is not sufficient to conclude that any party
made a materially false statement in bad faith. This provision leaves
open the possibility that punishment for lying or making false
statements might be retaliation, unless the recipient has concluded
that the party made a materially false statement in bad faith (and that
conclusion cannot be based solely on the outcome of the case).
While commenters are correct that Sec. 106.45(b)(2) requires the
written notice of allegations to inform the parties of any provision in
the recipient's code of conduct that prohibits knowingly making false
statements or knowingly submitting false information during the
grievance process, this provision appropriately alerts parties where
the recipient's own code of conduct has a policy against making false
statements during a disciplinary proceeding so that both parties
understand that risk. Section 106.71 protects complainants--and
respondents and witnesses--from being charged with code of conduct
violations arising from the same facts or circumstances as sexual
harassment allegations if such a charge is brought for the purpose of
curtailing rights or privileges secured by Title IX or these final
regulations, and leaves open the possibility that punishment for lying
might be retaliation unless the disciplined party made a materially
false statement in bad faith.
The Department notes that commenters' concerns that complainants
are sometimes punished unfairly for merely talking about their assault
with fellow students in violation of a school-imposed ``gag order'' is
addressed by Sec. 106.45(b)(5)(iii).
Changes: The Department has revised Sec. 106.45(b)(1)(iii) to
include in the required training how to serve impartially, including by
avoiding prejudgment of the facts at issue, conflicts of interest, and
bias. We have added Sec. 106.71(a), which prohibits retaliation and
states that charging an individual with a code of conduct violation
that does not involve sexual harassment but arises out of the same
facts or circumstances as sexual harassment allegations, for the
purpose of interfering with rights under Title IX, constitutes
retaliation. The Department has also added Sec. 106.71(b)(2) to
provide that charging an individual with a code of conduct violation
for making a materially false statement in bad faith does not
constitute retaliation, provided that a determination regarding
responsibility, alone, is not sufficient to conclude that any party
made a such a false statement.
False Allegations
Comments: A number of commenters referred the Department to
statistics, data, research, and studies relating to the frequency of
false accusations of sexual misconduct. Most commenters who raised the
issue of false allegations cited data for the proposition that
somewhere between two to ten percent of sexual assault reports are
false or unfounded.\424\ Commenters asserted that despite the low
frequency of false allegations, police officers tend to believe false
allegations of rape are much more common than they actually
[[Page 30085]]
are,\425\ reflecting a society-wide misconception about women falsely
alleging rape.
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\424\ Commenters cited: National Sexual Violence Resource
Center, False Reporting: Overview (2012); David Lisak et al., False
Allegations of Sexual Assault: An Analysis of Ten Years of Reported
Cases, 16 Violence Against Women 12 (2010); Kimberly A. Lonsway, et
al., False reports: moving beyond the issue, 3 The Voice 1 (2009);
U.S. Dep't. of Justice, Federal Bureau of Investigation, Crime in
the United States: 1996 Uniform Crime Reports (1997); State of
Victoria, Office of Women's Policy, Study of Reported Rapes in
Victoria 2000-2003: Summary Research Report (2006).
\425\ Commenters cited: David Lisak et al., False Allegations of
Sexual Assault: An Analysis of Ten Years of Reported Cases, 16
Violence Against Women 12 (2010).
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Many commenters concluded that such data shows that nationwide,
overreporting and false allegations are not nearly as concerning as
underreporting and perpetrators ``getting away with it,'' and thus
protection of respondents from false allegations should not be the
motive or purpose of Title IX rules.
Other commenters argued that whether the rate of false allegations
is as low as two to ten percent or somewhat higher, the reality is that
some complainants do bring false or unfounded accusations for a variety
of reasons.\426\ A few commenters referred to the Duke lacrosse rape
case and the University of Virginia gang rape situation as specific
instances where rape accusations were revealed to be false only after
prejudgment of the facts in favor of the complainants had led to unfair
penalization of the accused students. One commenter referred to a 2017
National Center for Higher Education Risk Management (NCHERM) report
that noted that the recent trend of increased reports ``brings
allegations of all kinds out of the woodwork, some based strongly in
fact, others that are baseless, and most that are somewhere in
between.'' \427\
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\426\ Commenters cited, e.g., Cassia Spohn & Katharine Tellis,
Policing and Prosecuting Sexual Assault in Los Angeles City and
County: A Collaborative Study in Partnership with the Los Angeles
Police Department, the Los Angeles County Sheriff's Department, and
the Los Angeles County District Attorney's Office (2012)
(``Complainants' motivations for filing false reports, which fell
into five overlapping categories, included a desire to avoid trouble
or a need for an alibi for consensual sex with someone other than a
current partner, a desire to retaliate against a current or former
partner, a need for attention or sympathy, and guilt or remorse as a
result of consensual sexual activity. Many complainants in the
unfounded cases also had mental health issues that made it difficult
for them to separate fact from fantasy.'').
\427\ Commenters cited: National Center for Higher Education
Risk Management (NCHERM), The 2017 NCHERM Group Whitepaper: Due
Process and the Sex Police 15 (2017) (``What is needed for all of
our students is a balanced process that centers on their respective
rights while showing favoritism to neither. Not only is that best,
it is required by law. Title IX Coordinators write to us, worried
that their annual summaries show that they are finding no violation
of policy 60% of the time in their total case decisions. They feel
like somehow that is wrong, or not as it should be, as if there is
some proper ratio of findings that we are supposed to be reaching. .
. . With all the training and education being directed at students,
more are coming forward, and that education brings allegations of
all kinds out of the woodwork, some based strongly in fact, others
that are baseless, and most that are somewhere in between.'').
---------------------------------------------------------------------------
One commenter, on behalf of an organization representing student
affairs professionals in higher education, described campus sexual
assault proceedings as complicated under the best of circumstances
because these cases involve navigating allegations that frequently
involve different personal recollections of what happened, with few or
no witnesses or physical evidence, and possibly colored by alcohol use
by one or both parties. Commenters argued that just because a victim
does not have corroborating evidence does not mean that a sexual
assault claim is false.
Discussion: Under the final regulations, recipients must offer
supportive measures to a complainant; the final regulations make this
an explicit part of a recipient's prompt, non-deliberately indifferent
response.\428\ Such a requirement advances the non-discrimination
mandate of Title IX by imposing an obligation on recipients to support
complainants even without a factual determination regarding the
allegations. In order to determine that a complainant has been
victimized and is entitled to remedies (which, unlike supportive
measures, need not avoid burdening a respondent),\429\ allegations of
Title IX sexual harassment must be resolved through the Sec. 106.45
grievance process, designed to reach reliable factual determinations.
This approach is necessary to promote accurate resolution of
allegations in each situation presented in a formal complaint,
regardless of how frequently or infrequently false accusations
statistically occur.
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\428\ Section 106.44(a).
\429\ The final regulations revise Sec. 106.45(b)(1)(i) to
expressly state that remedies, unlike supportive measures, may be
punitive or disciplinary and need not avoid burdening the
respondent. This distinction between supportive measures and
remedies is because remedies are required after a respondent has
been determined responsible under a grievance process that complies
with Sec. 106.45.
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The Department disputes that a choice must be made between caring
about underreporting and caring about overreporting, or prioritizing
protection of complainants' right to receive support and remedies, over
protection of respondents from unfounded accusations. The Department
understands that false allegations may occur infrequently, but believes
that in every case in which Title IX sexual harassment is alleged, the
facts must be resolved accurately to further the non-discrimination
mandate of Title IX, including providing remedies to victims and
ensuring that no party is treated differently based on sex. Under the
final regulations, complainants are entitled to a prompt response that
is not clearly unreasonable under the known circumstances, which
response must include offering supportive measures even in the absence
of factual investigation into the allegations. Complainants and
respondents are owed an impartial grievance process that reaches
reliable factual determinations of the allegations before remedies are
owed to a victim or disciplinary sanctions are imposed on the
respondent. Such an approach protects the interests of complainants and
respondents in each unique situation, without assuming the truth or
falsity of particular allegations based on statistical information
about the prevalence or reasons for false accusations.
The Department appreciates the commenters who described campus
sexual assault proceedings as difficult to navigate and complex because
they nearly always involve different personal recollections about what
happened, with few or no witnesses or physical evidence, possibly
influenced by alcohol use by one or both parties. Some commenters
emphasized, and the Department agrees, that the difficult, complex
nature of Title IX sexual harassment situations cautions against
concluding that allegations are ``false'' based solely on the outcome
of the case, because lack of evidence sufficient to conclude
responsibility does not necessarily imply that the allegations were
unfounded or false. In response to commenters addressing this topic,
these final regulations contain a provision expressly prohibiting
retaliation \430\ and specifying that charging an individual with a
code of conduct violation for making a materially false statement in
bad faith does not constitute retaliation, but a determination
regarding responsibility, alone, is not sufficient to conclude that any
party made a materially false statement in bad faith. This provision
cautions recipients to avoid stating or implying to complainants whose
formal complaints end in a determination of non-responsibility that the
determination, alone, means that the complainant's allegations were
false or show bad faith on the part of the complainant, because such
statements or implications may constitute retaliation. The Department
further notes that the new provision in Sec. 106.71(b)(2) applies
equally to respondents and complainants, such that a determination of
responsibility against a respondent, alone, is insufficient to justify
punishing the respondent for making a materially false
[[Page 30086]]
statement in bad faith. The Department agrees with commenters who
asserted that a complainant's allegations may be determined to be
accurate and valid even if there is no evidence corroborating the
complainant's statements. The final regulations are designed to result
in accurate outcomes regardless of the type of evidence available in
particular cases.
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\430\ Section 106.71.
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Changes: The Department has added Sec. 106.71(b)(2), which
provides that charging an individual with a code of conduct violation
for making a materially false statement in bad faith does not
constitute retaliation, provided that a determination regarding
responsibility, alone, is not sufficient to conclude that such a false
statement was made.
General Support and Opposition for Supreme Court Framework Adopted in
Sec. 106.44(a)
Comments: A number of commenters expressed general support for
Sec. 106.44(a). Several commenters supported the provision because
they believed it was fair and thoughtful or made common sense.
Commenters stated that this provision brings clarity and
accountability. One commenter opined that the proposed rules would
restore public confidence in these proceedings.
Other commenters expressed satisfaction that the provisions in
Sec. 106.44(a) are consistent with basic constitutional principles and
operative practices in our criminal justice system. A number of
commenters argued that the proposed rules were necessary because the
processes under previous rules have been inadequate. Some commenters
argued that this provision is necessary because there needs to be more
due process provided after the withdrawn 2011 Dear Colleague Letter.
Commenters expressed concern the previous approach in guidance lacked
protections for the accused, and the proposed rules balance protection
for the accused with justice for victims. Commenters asserted the
proposed rules bring back the rule of law to these proceedings. Other
commenters expressed concern that past Department guidance has led to
violations of students' free speech rights. Another commenter asserted
that by nature, universities are ill-equipped to handle criminal
assault charges and asserted that if universities are going to deal
with serious charges like sexual assault, it is critical that the
sanctions they wield, which often can have significant consequences,
are applied only after a fair process to determine facts and guilt; the
commenter supported the process that the proposed regulations provide.
Commenters expressed support for the Department's general approach
because it is flexible. Commenters supported the ``not clearly
unreasonable standard'' in particular for this reason. Commenters also
expressed support for this approach because it brings clarity to a very
confusing and complicated issue. Some commenters expressed support for
the proposed rules because they are pro-women. Other commenters
asserted that the proposed rules add needed clarity to what is required
by recipients under Title IX. Some commenters also stated that
responding to sexual harassment is a uniquely difficult challenge
because, unlike sexual assault, it is intertwined with free speech.
Commenters also expressed support for the Department's choice to
respect survivors' autonomy in deciding whether to initiate a grievance
process in the higher education setting. Some commenters suggested
expanding the deliberately indifferent standard to include the
respondent so that recipients must respond in a manner that is not
deliberately indifferent toward a complainant or respondent. Other
commenters asserted that not all cases of sexual harassment warrant
discipline because sometimes a reporting party just wants the
respondent to understand why what they did was wrong.
Some commenters suggested adding a statute of limitations
requirement in the filing of a complaint that aligns to that
jurisdiction so as to preserve evidence and protect both parties.
Other commenters expressed disapproval of the notion of third-party
reporting and bystander intervention because posters plastered all over
campuses that command students to make reporting a habit have a
totalitarian feel. Other commenters asked if the Department would
consider encouraging schools to inquire into anonymous and third-party
reports as a means of preventing harassment from worsening.
Discussion: The Department appreciates the comments in support of
the deliberate indifference standard in Sec. 106.44(a). The deliberate
indifference standard provides consistency with the Title IX rubric for
judicial and administrative enforcement and gives a recipient
sufficient flexibility and discretion to address sexual harassment. At
the same time, for reasons explained in the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, the Department has tailored a deliberate indifference
standard for administrative enforcement purposes by adding specific
obligations that every recipient must meet as part of every response to
sexual harassment, including offering supportive measures to
complainants through the Title IX Coordinator engaging in an
interactive discussion with the complainant about the complainant's
wishes, and explaining to the complainant the option and process for
filing a formal complaint.
The Department acknowledges that some commenters think that these
final regulations are pro-women while others think that these final
regulations are pro-men. The final regulations are structured to avoid
any favoritism on the basis of sex, and the Department will enforce
them in a manner that does not discriminate on the basis of sex.
The Department appreciates the commenters who would like the
Department to make it clear that the deliberate indifference standard
applies to both complainants and respondents. To address this concern,
the Department is revising Sec. 106.44(a) to clarify that a recipient
must treat complainants and respondents equitably, which for a
respondent means 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 as defined in Sec. 106.30.
We also appreciate commenters who would like us to respect the
autonomy of the complainant. A complainant may only want supportive
measures, may wish to go through an informal process, or may want to
file a formal complaint. The Department revised Sec. 106.44(a) to
clarify that an equitable response for a complainant means offering
supportive measures irrespective of whether the complainant also
chooses to file a formal complaint. Additionally, a recipient may
choose to offer an informal resolution process under Sec. 106.45(b)(9)
(except as to allegations that an employee sexually harassed a
student). These final regulations thus respect a complainant's autonomy
in determining how the complainant would like to proceed after a
recipient becomes aware (through the complainant's own report, or any
third party reporting the complainant's alleged victimization) that a
complainant has allegedly suffered from sexual harassment.
The Department does not wish to impose a statute of limitations for
filing a formal complaint of sexual harassment under Title IX. Each
State may have a different statute of limitations for filing a
complaint, which goes against the Department's objective of creating
[[Page 30087]]
uniformity and consistency. Additionally, a State's statute of
limitations for each category of sexual harassment may be different as
jurisdictions may have a different statute of limitations for criminal
offenses versus civil torts, adding yet another level of complexity to
a recipient's response. The Department notes that a complainant must be
participating in or attempting to participate in the education program
or activity of the recipient with which the formal complaint is filed
as provided in the revised definition of ``formal complaint'' in Sec.
106.30; this provision tethers a recipient's obligation to investigate
a complainant's formal complaint to the complainant's involvement (or
desire to be involved) in the recipient's education program or activity
so that recipients are not required to investigate and adjudicate
allegations where the complainant no longer has any involvement with
the recipient while recognizing that complainants may be affiliated
with a recipient over the course of many years and sometimes
complainants choose not to pursue remedial action in the immediate
aftermath of a sexual harassment incident. The Department believes that
applying a statute of limitations may result in arbitrarily denying
remedies to sexual harassment victims. At the same time, the Sec.
106.45 grievance process contains procedures designed to take into
account the effect of passage of time on a recipient's ability to
resolve allegations of sexual harassment. For example, if a formal
complaint of sexual harassment is made several years after the sexual
harassment allegedly occurred, Sec. 106.45(b)(3)(ii) provides that if
the respondent is no longer enrolled or employed by the recipient, or
if specific circumstances prevent the recipient from gathering evidence
sufficient to reach a determination as to the formal complaint or
allegations therein, then the recipient has the discretion to dismiss
the formal complaint or any allegations therein.
Similarly, the Department does not take a position in the NPRM or
these final regulations on whether recipients should encourage
anonymous reports of sexual harassment, but we have revised Sec.
106.8(a) and Sec. 106.30 defining ``actual knowledge'' to emphasize
that third party (including ``bystander'') reporting, as well as
anonymous reporting (by the complainant or by a third party) is a
permissible manner of triggering a recipient's response
obligations.\431\ Irrespective of whether a report of sexual harassment
is anonymous, a recipient with actual knowledge of sexual harassment or
allegations of sexual harassment in an education program or activity of
the recipient against a person in the United States, must respond
promptly in a manner that is not deliberately indifferent generally and
must meet the specific obligations set forth in revised Sec.
106.44(a). On the other hand, if a recipient cannot identify any of the
parties involved in the alleged sexual harassment based on the
anonymous report, then a response that is not clearly unreasonable
under light of these known circumstances will differ from a response
under circumstances where the recipient knows the identity of the
parties involved in the alleged harassment, and the recipient may not
be able to meet its obligation to, for instance, offer supportive
measures to the unknown complainant.
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\431\ Section 106.8(a) states that any person may report sexual
harassment (whether or not the person reporting is the person
alleged to be the victim of sexual harassment) by using the contact
information listed for the Title IX Coordinator, and that such a
report may be made ``at any time (including during non-business
hours)'' by using the listed telephone number or email address, or
by mail to the listed office address. Section 106.30 defines
``actual knowledge'' and includes a statement that ``notice''
charging a recipient with actual knowledge includes a report to the
Title IX Coordinator as described in Sec. 106.8(a). See also
discussion of anonymous reporting in the ``Formal Complaint''
subsection of the ``Section 106.30 Definitions'' section of this
preamble.
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Changes: The Department revised Sec. 106.44(a) to require
recipients to respond promptly in a manner that is not deliberately
indifferent. We also added to that paragraph: A recipient's response
must treat complainants and respondents equitably by offering
supportive measures as defined in Sec. 106.30 to a complainant, and 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 as defined in Sec. 106.30, against a
respondent. The Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as
defined in Sec. 106.30, consider the complainant's wishes with respect
to supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain to the complainant the process for filing a formal
complaint.
The Department also has revised Sec. 106.45(b)(3)(ii) to state
that if a respondent is no longer enrolled or employed by a recipient,
or if specific circumstances prevent the recipient from gathering
evidence sufficient to reach a determination as to the formal complaint
or allegations therein, then the recipient may dismiss the formal
complaint or any allegations therein.
We have also revised Sec. 106.8(a) and Sec. 106.30 defining
``actual knowledge'' to expressly state that any person may report
sexual harassment in person, by mail, telephone, or email, by using the
contact information required to be listed for the Title IX Coordinator.
Comments: A number of commenters asserted that Sec. 106.44(a) does
not adequately protect students in both elementary and secondary and
postsecondary education. Some commenters stated that no harassment at
all should be tolerated under Title IX. Other commenters asserted that
the provision would hinder Title IX enforcement. Still other commenters
opined that the provision creates a situation in which systematic
sexual harassment and misconduct can continue. Other commenters gave
examples of the need to protect students evidenced by high-profile
sexual abuse scandals at postsecondary institutions. Some commenters
asserted that the proposed rules change schools' current
responsibilities to take prompt and effective steps to end harassment,
arguing that the current standard is more protective of students than
the new deliberate indifference standard. Other commenters stated that
the provision allows schools to ``check boxes'' in investigating
complaints of sexual misconduct and will lead to a less prompt, less
equitable response. Commenters stated the proposed rules would require
schools to ignore all sexual harassment unless the student has been
denied equal access to education, even if the student has to sit next
to their harasser or rapist in class every day, which creates a hostile
environment for victims and negatively affects victims' ability to
proceed with their education. Commenters argued schools will become
more dangerous because the proposed rules perpetuate rape culture.
Discussion: The Department agrees with commenters inasmuch as
proposed Sec. 106.44(a), in conjunction with the way that actual
knowledge was defined in Sec. 106.30, did not adequately protect
students in the elementary and secondary context. As discussed in the
``Actual Knowledge'' subsection of the ``Adoption and Adaption of the
Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, we have revised Sec. 106.30 defining actual knowledge
to include notice to any elementary and secondary school employee.
[[Page 30088]]
We also agree with commenters to the extent that proposed Sec.
106.44(a) did not impose sufficient specific, mandatory requirements as
to what a recipient's non-deliberately indifferent response must
consist of in order to protect complainants and be fair to respondents,
in the context of elementary and secondary schools as well as the
postsecondary institution context. As revised, Sec. 106.44(a) requires
all recipients to treat complainants and respondents equitably when
responding to a report or formal complaint of sexual harassment (by
offering supportive measures to complainants, and by disciplining
respondents only after applying a grievance process that complies with
Sec. 106.45).
When a recipient has actual knowledge of sexual harassment in its
education program or activity, the Department will not tolerate, and
the final regulations do not allow recipients to tolerate, sexual
harassment, including systematic sexual harassment or the perpetuation
of a rape culture. Contrary to commenters' assertions, recipients will
not be allowed to ignore sexual harassment until it leads to the denial
of equal access to education and must respond to every report of sexual
harassment by offering supportive measures by engaging in an
interactive discussion with the complainant to consider the
complainant's wishes regarding available supportive measures, with or
without the filing of a formal complaint. Supportive measures for
complainants may include a different seating assignment or other
accommodation so that the complainant does not need to sit next to the
respondent in class every day. By requiring a recipient to offer
supportive measures, these final regulations do not create or further a
hostile environment and expressly require recipients to provide
measures designed to restore or preserve a complainant's equal access
to education.
In response to comments, the Department also revised Sec.
106.44(a) to clarify that a recipient must respond promptly in a manner
that is not deliberately indifferent. This clarifies that whether or
not a formal complaint triggers a grievance process, the recipient must
promptly offer supportive measures to the complainant. Where a formal
complaint does trigger a grievance process, Sec. 106.45(b)(1)(v)
requires recipients to have a reasonably prompt time frame for the
conclusion of the grievance process, including any appeals or informal
resolution process.
Changes: As previously noted, the Department revised Sec.
106.44(a) to require that the recipient respond promptly, and by
offering supportive measures to complainants while refraining from
punishing a respondent without following the Sec. 106.45 grievance
process.
Comments: Commenters expressed concern that the trauma suffered by
victims is too great to hold schools to the deliberate indifference
standard, which commenters characterized as too low a standard.
Commenters noted the severe long-term effects of sexual assault and
harassment on victims, including depression and suicide. Commenters
expressed concern with the ``clearly unreasonable'' standard because
false reporting is much less likely to happen than actual rape.
Commenters stated the proposed rules promote the misconception that
survivors are making false accusations of sexual assault.
Commenters expressed concern that the proposed rules allow
perpetrators in positions of authority to abuse the system. Commenters
stated that by allowing institutions to create complex and opaque
systems for reporting sexual harassment or sexual assault, perpetrators
in positions of authority can continue to victimize students over long
periods.
Discussion: The Department disagrees that the deliberate
indifference standard in Sec. 106.44(a) is too low of a standard to
protect complainants and hold schools, colleges, and universities
responsible for responding to sexual harassment in education programs
or activities. As adapted from the Gebser/Davis framework and revised
in these final regulations, this standard requires recipients to offer
supportive measures to a complainant through an interactive process
whereby the Title IX Coordinator must contact the complainant to
discuss availability of supportive measures (with or without the filing
of a formal complaint), consider the complainant's wishes regarding
supportive measures, and explain to the complainant the process for
filing a formal complaint. The Department has not previously imposed a
legally binding requirement on recipients to offer supportive measures
to a complainant in response to a report of sexual harassment. The
Department acknowledges that sexual assault and sexual harassment may
have severe, long-term consequences, which is why the Department
requires recipients to respond promptly and to offer a complainant
supportive measures. The final regulations' emphasis on supportive
measures recognizes that educational institutions are uniquely
positioned to take prompt action to protect complainants' equal access
to education when the educational institution is made aware of sexual
harassment in its education program or activity, often in ways that
even a court-issued restraining order or criminal prosecution of the
respondent would not accomplish (e.g., approving a leave of absence for
a complainant healing from trauma, or accommodating the re-taking of an
examination missed in the aftermath of sexual violence, or arranging
for counseling or mental health therapy for a sexual harassment victim
experiencing PTSD symptoms). While we recognize that the range of
supportive measures (defined in Sec. 106.30 as individualized
services, reasonably available, without fee or charge to the party)
will vary among recipients, we believe that every recipient has the
ability to consider, offer, and provide some kind of individualized
services reasonably available, designed to meet the needs of a
particular complainant to help the complainant stay in school and on
track academically and with respect to the complainant's educational
benefits and opportunities, as well as to protect parties' safety or
deter sexual harassment. These final regulations impose on recipients a
legal obligation to do what recipient educational institutions have the
ability and responsibility to do to respond promptly and supportively
to help complainants, while treating respondents fairly.
Commenters erroneously asserted that the Department is adopting the
standard in Sec. 106.44(a) because of a belief that false reporting
occurs more frequently than rape; these final regulations are not
premised on, and do not promote, this notion. As explained previously,
the Department is adopting this standard to require recipients to
respond promptly and in a manner that provides a complainant with
supportive measures and presents the complainant with more control over
the process by which the recipient will respond to the report of sexual
harassment.
This standard will not allow perpetrators in positions of authority
to abuse the system or to continue to victimize students over long
periods of time. Contrary to the commenters' assertions, these final
regulations do not allow institutions to create complex and opaque
systems for reporting sexual harassment or sexual assault. These final
regulations require recipients to notify all students and employees
(and parents and guardians of elementary and secondary school students)
of the name or title, office address, electronic mail address, and
telephone number of the employee or employees designated
[[Page 30089]]
as the Title IX Coordinator pursuant to Sec. 106.8(a) so that students
and employees will know to whom they may report sexual harassment and
how to make such a report, including options for reporting during non-
business hours. Each recipient also must prominently display the
contact information required to be listed for the Title IX Coordinator
on its website, if any, and in each handbook or catalog that it makes
available to applicants for admission and employment, students, parents
or legal guardians of elementary and secondary school students,
employees, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
pursuant to Sec. 106.8(c). Additionally, a recipient must respond when
the recipient has actual knowledge of sexual harassment, even if the
complainant (i.e., the person alleged to be the victim) is not the
person who reports the sexual harassment. As explained above, ``actual
knowledge'' is defined in Sec. 106.30 as notice of sexual harassment
or allegations of sexual harassment to a recipient's Title IX
Coordinator or any official of the recipient who has authority to
institute corrective measures on behalf of the recipient, or to any
employee of an elementary and secondary school. Far from being complex
or opaque, the final regulations ensure that recipients and their
educational communities (including their students, employees, and
parents of elementary and secondary school students) understand how to
report sexual harassment and what the recipient's response will be.
Regardless of whether a recipient desires to absolve itself of actual
knowledge of sexual harassment, a recipient cannot avoid actual
knowledge triggering prompt response obligations, because any person
(not only the complainant--i.e., the alleged victim--but any third
party) may report sexual harassment allegations to the Title IX
Coordinator, to an official with authority to take corrective action,
or to any elementary or secondary school employee.\432\ The final
regulations require recipients to post on their websites the contact
information for the recipient's Title IX Coordinator and to send notice
to every student, employee, and parent of every elementary and
secondary school student of the Title IX Coordinator's contact
information.\433\ The final regulations thus create clear, accessible
channels for any person to report sexual harassment in a way that
triggers a recipient's response obligations. A recipient must promptly
respond if it has actual knowledge that any person, including someone
in a position of authority, is sexually harassing or assaulting
students; failure to do so violates these final regulations. As
previously stated, the deliberate indifference standard is flexible and
may require a different response depending on the unique circumstances
of each report of sexual harassment. If a recipient has actual
knowledge of a pattern of alleged sexual harassment by a perpetrator in
a position of authority, then a response that is not deliberately
indifferent or clearly unreasonable may require the recipient's Title
IX Coordinator to sign a formal complaint obligating the recipient to
investigate in accordance with Sec. 106.45, even if the complainant
(i.e., the person alleged to be the victim) does not wish to file a
formal complaint or participate in a grievance process.
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\432\ See Sec. 106.30 defining ``actual knowledge'' and Sec.
106.44(a) requiring a prompt response to actual knowledge of sexual
harassment in a recipient's program or activity against a person in
the United States.
\433\ Section 106.8 (expressly stating that any person may
report sexual harassment by using the contact information required
to be listed for the Title IX Coordinator or by any other means that
results in the Title IX Coordinator receiving the person's verbal or
written report; requiring the contact information to be prominently
displayed on recipients' websites; and stating that reports may be
made at any time including during non-business hours by using the
listed telephone number or email address or by mail to the listed
office address).
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Changes: None.
Comments: A number of commenters expressed concern that the
proposed rules create more obstacles for survivors. Commenters stated
that the proposed rules are not based in science and that reducing
existing standards by not providing support and services to survivors
of sexual assault and harassment is harmful and out of step with data
and research. Other commenters expressed concern that the proposed
rules prevent survivors from coming forward by cutting off their access
to resources. Commenters expressed concern that the proposed rules are
unfair to, unreasonable, or indifferent toward survivors and allows
schools to do very little to help survivors. Commenters stated the
proposed rules make it impossible for survivors to seek meaningful
redress from their schools after having experienced sexual harassment.
Some commenters expressed concern that the standard for opening an
investigation is too high. Other commenters suggested that the standard
for opening an investigation into an individual student's complaint of
harassment should not be as high as the standard for actually holding a
school liable as an institution. Commenters stated that the Title IX
Coordinator determining if a complaint meets certain criteria is an
unnecessary obstacle.
Commenters argued that requiring a formal complaint places
additional burdens on the individual who has experienced trauma.
Commenters stated the process could retraumatize the survivor and
discourage others from coming forward. Commenters stated a plaintiff
would normally be able to access equitable relief to remedy
unintentional discrimination through a court order, but the Department
would not attempt to secure a remedy on the same facts.
Discussion: Contrary to commenters' assertions, these final
regulations remove obstacles for complainants by clearly requiring
recipients to offer supportive measures irrespective of whether the
complainant files a formal complaint and without any showing of proof
of the complainant's allegations. The final regulations provide greater
choice and control for complainants. Complainants may choose whether to
receive supportive measures without filing a formal complaint, may
choose to receive supportive measures and file a formal complaint, or
may choose to receive supportive measures and request any informal
resolution process that the recipient may offer. Accordingly, these
final regulations respect complainants' autonomy and require recipients
to consider the wishes of each complainant with respect to the type of
response that best suits a complainant's particular needs.\434\
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\434\ While the final regulations at Sec. 106.30 (defining
``formal complaint'') give Title IX Coordinators discretion to sign
a formal complaint even where the complainant does not wish to
participate in a grievance process, the final regulations also
protect every complainant's right not to participate. Sec. 106.71
(prohibiting retaliation against any person exercising rights under
Title IX, including participation or refusal to participate in any
grievance process).
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We disagree that the standard for opening an investigation is the
same standard for holding a recipient liable and that this standard is
too high. If a recipient has actual knowledge of sexual harassment (or
allegations of sexual harassment) in its education program or activity
against a person in the United States, then it must begin an
investigation as soon as the complainant requests an investigation by
filing a formal complaint (or when the Title IX Coordinator determines
that circumstances require or justify signing a formal complaint). The
actual knowledge standard is discussed in
[[Page 30090]]
greater depth under the ``Actual Knowledge'' subsection of the
``Section 106.30 Definitions'' section of this preamble.
Title IX Coordinators have always had to consider whether a report
satisfies the criteria in the recipient's policy, and these final
regulations are not creating new obstacles in that regard. The criteria
that the Title IX Coordinator must consider are statutory criteria
under Title IX or criteria under case law interpreting Title IX's non-
discrimination mandate with respect to discrimination on the basis of
sex in the recipient's education program or activity against a person
in the United States, tailored for administrative enforcement.\435\
Additionally, these final regulations do not preclude action under
another provision of the recipient's code of conduct, as clearly stated
in revised Sec. 106.45(b)(3)(i), if the conduct alleged does not meet
the definition of Title IX sexual harassment.
---------------------------------------------------------------------------
\435\ See the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------
The Department understands commenters' concerns that requiring
complainants to go through a formal complaint process may cause further
trauma, which is why the Department's final regulations provide that a
recipient must offer supportive measures even if the complainant does
not choose to file a formal complaint. We do not think that giving a
complainant the choice to file a formal complaint will further
traumatize the complainant. Giving complainants the option to choose a
formal complaint process rather than mandating such a process gives
complainants more autonomy and control over their circumstances, which
survivor advocates have emphasized is crucial to supporting survivors,
and may make more complainants feel comfortable enough to report
allegations of sexual harassment. Where a complainant does file a
formal complaint raising allegations of sexual harassment, both parties
must have full and fair opportunity to participate in a fair grievance
process designed to reach an accurate outcome. The final regulations
endeavor to take into account the fact that navigating a formal process
can be difficult for both complainants and respondents.\436\
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\436\ E.g., Sec. 106.45(b)(5)(iv) gives both parties equal
opportunity to be assisted by an advisor of choice.
---------------------------------------------------------------------------
The Department does not understand the comment that these final
regulations do not require recipients to address unintentional
discrimination that a court would address. These final regulations
require a recipient to respond to allegations of sexual harassment as
defined in Sec. 106.30, irrespective of whether the alleged conduct
was intentional or unintentional on the part of the respondent \437\
and similarly, a recipient's response obligations will be enforced
without any regard for whether a recipient ``intentionally'' violated
these final regulations. If a complainant received a court order
remedying unintentional discrimination, the recipient would have to
follow any court order that by its terms applied to that recipient.
---------------------------------------------------------------------------
\437\ Section 106.30 defining ``sexual harassment'' does not
impose an independent intent or mens rea requirement on conduct that
constitutes sexual harassment; however, the Department notes that
the sexual offense of ``fondling,'' which is an offense under
``sexual assault'' as defined under the Clery Act and made part of
Title IX sexual harassment under Sec. 106.30, includes as an
element of fondling touching ``for the purpose of sexual
gratification.'' Courts have interpreted similar ``purpose of''
elements in sex offense legislation as an intent requirement, and
recipients should take care to apply that intent requirement to
incidents of alleged fondling so that, for example, unwanted
touching committed by young children--with no sexualized intent or
purpose--is distinguished from Title IX sexual harassment and can be
addressed by a recipient outside these final regulations.
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.44(a) to require recipients to
treat complainants and respondents equitably meaning offering
supportive measures to a complainant and refraining from disciplining a
respondent with following the Sec. 106.45 grievance process;
specifically, a recipient's Title IX Coordinator must contact the
complainant to discuss the availability of supportive measures (with or
without the filing of a formal complaint), consider the complainant's
wishes with respect to supportive measures, and explain to the
complainant the process for filing a formal complaint.
Comments: Some commenters argued that the proposed rules would
allow a school to treat survivors poorly and impose little or no
sanctions for rapists. Other commenters stated the proposed rules would
dissolve free speech for survivors.
Some commenters expressed concern that the proposed rules allow
schools to evade responsibility and accountability. Other commenters
expressed concern that the proposed rules give too much deference to
school districts. At least one commenter expressed concern that the
Department's decision to adopt the deliberate indifference standard
essentially negates the Department's ability to perform regulatory
oversight, one of its primary functions. Commenters argued that
deferring to a school district's determination is not always
appropriate, and accountability is necessary to ensure schools are free
of sexual harassment. Other commenters expressed concern that
universities can expediently reduce liability by simply checking boxes
and doing nothing. Commenters argued that the responsibilities of
university administrators and educators extend beyond the minimal
standard set by the rule. Commenters expressed concern that the
proposed rules allow the Department to defer to local leaders rather
than ensuring universally agreed-upon standards. Other commenters
argued that institutions need to be labeled publicly as offenders.
Discussion: As previously noted, the recipient cannot ignore a
complainant's report of sexual harassment, and these final regulations
do not prevent punishment of perpetrators of sexual assault; the
recipient must offer supportive measures to the complainant under Sec.
106.44(a) and Title IX Coordinators must be trained to serve
impartially, without prejudgment of the facts and without bias, under
Sec. 106.45(b)(1)(iii). A recipient may impose disciplinary sanctions
upon a respondent after a grievance process that complies with Sec.
106.45. Requiring recipients to offer supportive measures to the
complainant and follow a grievance process under Sec. 106.45 prior to
disciplining the respondent helps ensure that a recipient's response
treats complainants and respondents fairly. Moreover, the final
regulations add Sec. 106.71 to assure complainants and respondents
that the recipient cannot retaliate against any party.
Contrary to commenters' assertions, these final regulations do not
dissolve free speech for complainants. The Department revised Sec.
106.44(a) to clarify that no recipient is required to restrict a
person's rights under the U.S. Constitution, including the First
Amendment, to satisfy its obligation not to be deliberately indifferent
in response to sexual harassment. Although this premise is expressed in
Sec. 106.6(d), which applies to the entirety of Part 106 of Title 34
of the Code of Federal Regulations, in recognition of commenters'
concerns that a recipient subject to constitutional restraints may
believe that the recipient must restrict constitutional rights in order
to comply with the recipient's obligation to respond to a Title IX
sexual harassment incident, the Department reinforces in Sec.
106.44(a) that responding in a non-deliberately indifferent manner to a
complainant does not require restricting constitutional rights.\438\
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\438\ Similarly, the Department emphasizes the purpose of Sec.
106.6(d) in new Sec. 106.71(b) (prohibiting retaliation) to remind
recipients that in the context of deciding if conduct constitutes
retaliation, the Department will interpret the retaliation
prohibition in a manner consistent with constitutional rights such
as rights under the First Amendment.
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[[Page 30091]]
The Department is not negating its duties or unduly deferring to a
recipient with respect to compliance with Title IX. The Department is
clarifying the recipient's legally enforceable obligations through
these final regulations and providing greater consistency. Every
complainant who reports sexual harassment, as defined in Sec. 106.30,
will know that the recipient must offer supportive measures in response
to such a report, and every respondent will know that a recipient must
provide a grievance process under Sec. 106.45 prior to imposing
disciplinary sanctions. The Department will continue to exercise
regulatory oversight in enforcing these final regulations. Recipients,
including universities, will not be able to simply check off boxes
without doing anything. Recipients will need to engage in the detailed
and thoughtful work of informing a complainant of options, offering
supportive measures to complainants through an interactive process
described in revised Sec. 106.44(a), and providing a formal complaint
process with robust due process protections beneficial to both parties
as described in Sec. 106.45. Where a formal complaint triggers a
grievance process, Sec. 106.45 requires recipients to do much more
than simply have a process ``on paper'' or ``check off boxes.'' These
final regulations require a recipient to investigate and adjudicate a
complaint in a way that gives both parties a meaningful opportunity to
participate, including by requiring the recipient to objectively
evaluate relevant evidence, permitting parties to inspect and review
evidence, and providing the parties a copy of an investigative report
prior to any hearing or other determination regarding responsibility.
These procedures, and all the provisions in Sec. 106.45, must be
followed by the recipient using personnel who are free from bias and
conflicts of interest and who are trained to serve impartially.
With respect to commenters who asserted that recipients should have
greater obligations than those imposed under these final regulations,
the Department notes that nothing in these final regulations precludes
action under another provision of the recipient's code of conduct that
these final regulations do not address. For example, a recipient may
choose to address conduct outside of or not in its ``education program
or activity,'' even though Title IX does not require a recipient to do
so. The Department believes that these final regulations hold
recipients to appropriately high, legally enforceable standards of
compliance to effectuate Title IX's non-discrimination mandate.
The Department disagrees that all institutions should be labeled
publicly as offenders for violating Title IX. The Department will make
findings against recipients that violate these final regulations and
will continue to make such letters of findings publicly available.
Changes: The Department revised Sec. 106.44(a) to clarify that the
Department will not deem a recipient not deliberately indifferent based
on the recipient's restriction of rights protected under the U.S.
Constitution, including the First Amendment, the Fifth Amendment, and
the Fourteenth Amendment.
Comments: A number of commenters argued that the 2011 Dear
Colleague Letter was better for protecting survivors and was fair to
both sides. One commenter urged the Department to reject the NPRM and
to reinstate the 2011 Dear Colleague Letter and 2014 Q&A to keep
students safe. This commenter argued that Title IX is a critical safety
net because applicable State laws and school policies may vary widely
and leave students unprotected. The commenter also cited studies
showing a widespread problem of educator sexual misconduct against
students.\439\ Another commenter suggested that the proposed rules
should be replaced with affirmative obligations from the 2011 Dear
Colleague Letter requiring the recipient to take immediate action to
eliminate the harassment, prevent its reoccurrence, and address its
effects.
---------------------------------------------------------------------------
\439\ Commenters cited, e.g.: Magnolia Consulting,
Characteristics of School Employee Sexual Misconduct: What We Know
from a 2014 Sample (Feb. 1, 2018), https://magnoliaconsulting.org/news/2018/02/characteristics-school-employee-sexual-misconduct
(noting one in three employee-respondents in elementary and
secondary schools sexually abuse multiple student victims).
---------------------------------------------------------------------------
A number of commenters argued that the 2001 Guidance was adequate
and protected survivors. Commenters asserted that the 2001 Guidance
standards were superior to the Gebser/Davis standards. Other commenters
expressed concern that even under the 2001 Guidance standards, schools
failed to adopt policies that would develop responses to sexual
harassment designed to reduce occurrence and remedy effects. Similarly,
commenters expressed concern that many cases demonstrate that even when
students and parents were well informed on the 2001 Guidance standards,
and brought legitimate concerns directly to institutions, institutions
continued to fail students. Commenters argued that schools conducted an
in-name-only investigation and refused to discipline respondents,
resulting in escalating sexual harassment, in some cases leading to
rape.
A number of commenters opposed the use of the Gebser/Davis
standards. Commenters disapproved of the use of the higher bar erected
by the U.S. Supreme Court in the very specific and narrow context of a
civil Title IX lawsuit seeking monetary damages against a school due to
its response (or lack thereof) to actual notice of sexual harassment.
Commenters argued these standards have no place in the far different
context of administrative enforcement with its iterative process and
focus on voluntary corrective action by schools. Other commenters
argued that the 2001 Guidance directly addressed this precedent,
concluding that it was inappropriate for the Department to limit its
enforcement activities by applying the more stringent standard, stating
that the Department would continue to enforce the broader protections
provided under Title IX, and noting that the Department acknowledges
that it is ``not required to adopt the liability standards applied by
the Supreme Court in private suits for money damages.'' Other
commenters expressed concern about the Davis progeny, where Federal
courts have determined that only the most severe cases can meet the
deliberate indifference standard. Other commenters suggested that the
liability standard should be higher than what was set by the Supreme
Court, and that recipients must be on clear notice of what conduct is
prohibited and that recipients must be held liable only for conduct
over which they have control.
Discussion: Although the Department is not required to adopt the
deliberate indifference standard articulated by the Supreme Court, we
are persuaded by the rationales relied on by the Supreme Court and
believe that the deliberate indifference standard represents the best
policy approach. As the Supreme Court reasoned in Davis, a recipient
acts with deliberate indifference only when it responds to sexual
harassment in a manner that is ``clearly unreasonable in light of the
known circumstances.'' \440\ The Department believes this standard
holds recipients accountable for providing a meaningful response to
every report, without depriving recipients of legitimate and necessary
[[Page 30092]]
flexibility to make disciplinary decisions and provide supportive
measures that best respond to particular incidents of sexual
harassment. Sexual harassment incidents present context-driven, fact-
specific needs and concerns for each complainant, and the Department
believes that teachers and local school leaders with unique knowledge
of the school climate and student body are best positioned to make
decisions about supportive measures and potential disciplinary
measures; thus, unless the recipient's response to sexual harassment is
clearly unreasonable in light of the known circumstances, the
Department will not second guess such decisions.\441\ In response to
commenters' concerns that the liability standard of deliberate
indifference gives recipients too much leeway to respond to the sexual
harassment ineffectively, the Department has specified certain steps a
recipient must take in all circumstances. For example, a response that
is not deliberately indifferent must include promptly informing each
complainant of the method for filing a formal complaint, offering
supportive measures for that complainant, and imposing discipline on a
respondent only after complying with the grievance process set forth in
Sec. 106.45. Where a respondent has been found responsible for sexual
harassment, any disciplinary sanction decision rests within the
discretion of the recipient, and the Department's concern under Title
IX is to mandate that the recipient provide remedies, as appropriate,
to the victim, designed to restore or preserve the victim's equal
educational access.\442\
---------------------------------------------------------------------------
\440\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49
(1999).
\441\ Id. Indeed, the Supreme Court observed in Davis that
courts must not second guess recipients' disciplinary decisions. As
a matter of policy, the Department believes that the Department
should not second guess recipients' disciplinary decisions through
the administrative enforcement process. When a recipient finds a
respondent responsible for Title IX sexual harassment, the
Department requires the recipient to effectively implement remedies
for the complainant, and will not second guess the recipient's
determination of responsibility solely based on the fact that the
Department would have weighed the evidence in the case differently
than the recipient's decision-maker did. Sec. Sec. 106.45(b)(1)(i),
106.45(b)(7)(iv), 106.44(b)(2).
\442\ Section 106.45(b)(1)(i).
---------------------------------------------------------------------------
The Department acknowledges that the deliberate indifference
standard in Sec. 106.44(a) departs from standards set forth in prior
guidance and applied in OCR enforcement of Title IX. In its previous
guidance and enforcement practices, the Department took the position
that constructive notice--as opposed to actual knowledge--triggered a
recipient's duty to respond to sexual harassment; that recipients had a
duty to respond to a broader range of sex-based misconduct than the
sexual harassment defined in the proposed rules; and that recipients'
response to sexual harassment should be effective and should be judged
under a reasonableness or even strict liability standard, rather than
under the deliberate indifference standard.\443\
---------------------------------------------------------------------------
\443\ 2001 Guidance at iv, vi.
---------------------------------------------------------------------------
Based on its consideration of the text and purpose of Title IX, of
the reasoning underlying the Court's decisions in Gebser and Davis, and
over 124,000 comments, the Department departs from its prior guidance
that set forth a standard different from the deliberate indifference
standard. We discuss the reasons for the ways in which we have adopted,
but tailored, the three-part Gebser/Davis framework in these final
regulations, in the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section of this preamble,
including the ways in which these final regulations are similar to, and
different from, Department guidance.
In response to commenters who asserted that recipients should only
be liable for conduct over which they have control, the Department
agrees with that statement and, in response, adds to Sec. 106.44(a)
the statement that ``education program or activity'' includes
locations, events, or circumstances over which the recipient exercised
substantial control over both the respondent and the context in which
the harassment occurs. The Department derives this language from the
holding in Davis that a recipient should be held liable for
``circumstances wherein the recipient exercises substantial control
over both the harasser and the context in which the known harassment
occurs.'' \444\ Accordingly, the Department does not need to adopt a
higher standard than what the Gebser/Davis framework set forth in order
to hold a recipient responsible for circumstances under the recipient's
control. These final regulations apply to employees who sexually harass
a student and will provide uniformity and consistency with respect to
how a recipient responds to employee-on-student sexual harassment.
---------------------------------------------------------------------------
\444\ Davis, 526 U.S. at 645.
---------------------------------------------------------------------------
The Department acknowledges that some recipients failed to satisfy
the requirements in the Department's past guidance and does not believe
that the past failures of these recipients require the Department to
adopt a different standard. The standards we adopt cannot ensure
recipients' compliance in every instance. Any failure to comply would
be handled as an enforcement matter, but such failure to comply, alone,
does not warrant changing the standard.
Changes: In addition to the changes previously noted, Sec.
106.44(a) now includes a statement that ``education program or
activity'' includes locations, events, or circumstances over which the
recipient exercised substantial control over both the respondent and
the context in which the harassment occurs.
Comments: Commenters expressed concern that the proposed rules
would result in less predictable outcomes for schools. Commenters
reasoned that if the Department applies a standard for monetary damages
to its administrative enforcement scheme, plaintiffs will ask the
courts to play the role that the Department abdicated. Commenters
expressed concern that the proposed rules will cause a massive increase
in lawsuits against colleges because individuals who would have filed
administrative complaints with the Department will instead file court
actions for equitable relief against recipients of Federal funds thus
depriving schools of an opportunity to comply voluntarily. Commenters
asserted that such a system would be both less efficient and far slower
than the status quo, because the costs of litigation would dwarf the
costs of negotiating a voluntary resolution agreement and recipients of
Federal funds would be unable to engage in informal negotiations with
the court over the extent of the remedy. Commenters argued that if the
Department adopts the same standards as the Court adopted for monetary
damages, students with viable claims will likely bypass the Department
altogether, undercutting the Department's efforts to promote systemic
reforms that would benefit individuals without the means to engage in
litigation.
Commenters expressed concern that the Department is the wrong
entity to enact Title IX reforms and that survivors should be the ones
who create or enact these regulations. Commenters likened the proposed
rules to laws restricting abortions inasmuch as people who are not
women should not dictate how a woman's body is treated, with respect to
having an abortion or how a school responds to the sexual assault of a
woman's body.
Discussion: The Department respectfully disagrees that the proposed
rules or these final regulations would result in less predictable
outcomes for schools. As previously explained, the Department revised
Sec. 106.44(a) to specify that a recipient must offer supportive
measures to a complainant,
[[Page 30093]]
and must include a grievance process that complies with Sec. 106.45
before the imposition of any disciplinary sanctions or other actions
that are not supportive measures as defined in Sec. 106.30.
Additionally, as explained in more detail below, the Department has
revised Sec. 106.44(b) to remove the safe harbors that were proposed
in the NPRM, replacing the concept of safe harbors with more specific
obligations: Mandatory steps that a recipient must take as part of
every response to sexual harassment, in Sec. 106.44(a); and a
requirement to investigate and adjudicate in accordance with Sec.
106.45 in response to a formal complaint, in Sec. 106.44(b).
The Department disagrees that it is abdicating its role to courts
and that litigation will significantly increase as a result of these
final regulations. The Department recognizes that its approach to Title
IX enforcement may have caused much litigation in the past, as
recipients that complied with the Department's recommendations in past
guidance may have risked not providing adequate due process
protections, resulting in litigation. Going forward, the Department
believes that the balanced approach in these final regulations will
provide complainants with supportive, meaningful responses to all
reports, and provide both parties with due process protections during
investigations and adjudications, which may result in decreased
litigation against recipients by complainants and respondents. The
Department will be the arbiter of whether a recipient complies with the
requirements of these final regulations. Additionally, failure to
comply with the Department's regulations may not always result in legal
liability before a court. For example, although the final regulations
require that a recipient must offer supportive measures to a
complainant, a court may determine that a recipient was not
deliberately indifferent even though that recipient did not offer
supportive measures. If a recipient complies with the Department's
regulations and offers supportive measures in response to a complaint
of sexual harassment, then such action may persuade a court that the
recipient was not deliberately indifferent. Accordingly, the Department
retains its proper role as the enforcer of its regulations, and these
final regulations may help decrease litigation.
Congress charged the Department with the responsibility to
administer Title IX, and the Department has carefully considered the
input of survivors as well as other communities through the notice-and-
comment rulemaking process before issuing these final regulations. The
Department is sensitive to the unique trauma that sexual violence often
inflicts on women (as well as men, and LGBTQ individuals); while the
Department disagrees with a commenter's assertion that these
regulations are similar to laws restricting abortions, we endeavor in
these final regulations to give each complainant (regardless of sex)
more control over the response of the complainant's school, college, or
university in the wake of sexual harassment that violates a woman or
other complainant's physical and emotional dignity and autonomy.
Changes: We have removed the ``safe harbor'' provisions in proposed
Sec. 106.44(b).
Comments: Commenters expressed concern that new sets of formal
relationships between faculty members and students are established
every four months, when students enroll in new courses each academic
term and that any given student may not currently be under the
supervision of a particular faculty member, but that situation could
change in a matter of a few weeks. Such reconfigurations every semester
add to the difficulty of determining whether a particular circumstance
is or is not within the scope of Title IX pursuant to Sec. 106.44(a).
Discussion: The Department is aware that students will change
classes and also have different instructors throughout their education,
and these final regulations provide the same clarity and consistency in
case law under the Supreme Court's rubric in Gebser/Davis. The
Department notes that ``program or activity'' has been defined in
detail by Congress \445\ and is reflected in existing Department
regulations.\446\ The Department will interpret a recipient's education
``program or activity'' in accordance with the Title IX statute and its
implementing regulations, which generally provide that an educational
institution's program or activity includes ``all of the operations of''
a postsecondary institution or elementary and secondary school. For
instance, incidents that occur in housing that is part of a recipient's
operations such as dormitories that a recipient provides for students
or employees whether on or off campus are part of the recipient's
education program or activity. For example, a recipient must respond to
an alleged of sexual harassment between two students in one student's
dormitory room provided by the recipient. In order to clarify that a
recipient's ``education program or activity'' may also include
situations that occur off campus, the Department adds to Sec.
106.44(a) the statement that ``education program or activity'' includes
locations, events, or circumstances over which the recipient exercised
substantial control over both the respondent and the context in which
the harassment occurs. This helps clarify that even if a situation
arises off campus, it may still be part of the recipient's education
program or activity if the recipient exercised substantial control over
the context and the alleged harasser. While such situations may be fact
specific, recipients must consider whether, for example, a sexual
harassment incident between two students that occurs in an off-campus
apartment (i.e., not a dorm room provided by the recipient) is a
situation over which the recipient exercised substantial control; if
so, the recipient must respond to notice of sexual harassment that
occurred there. The Department has also revised Sec. 106.45(b)(1)(iii)
to specifically require recipients to provide Title IX personnel with
training about the scope of the recipient's education program or
activity, so that recipients accurately identify situations that
require a response under Title IX. We further note that we have revised
Sec. 106.45(b)(3) to clarify that even if alleged sexual harassment
did not occur in the recipient's education program or activity,
dismissal of a formal complaint for Title IX purposes does not preclude
the recipient from addressing that alleged sexual harassment under the
recipient's own code of conduct. Recipients may also choose to provide
supportive measures to any complainant, regardless of whether the
alleged sexual harassment is covered under Title IX.
---------------------------------------------------------------------------
\445\ 20 U.S.C. 1687.
\446\ 34 CFR 106.2(h).
---------------------------------------------------------------------------
The Department is revising the definition of ``formal complaint''
in Sec. 106.30 to make it clear that the student must be participating
in or attempting to participate in the education program or activity of
the recipient with which the formal complaint is filed; no similar
condition exists with respect to reporting sexual harassment.\447\
Changing classes or changing instructors does not necessarily mean that
a student
[[Page 30094]]
is not participating or attempting to participate in a recipient's
education program or activity. To the extent that a recipient needs
further clarity in this regard, the Department will be relying on
statutory and regulatory definitions of a recipient's education
``program or activity.'' \448\
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\447\ We have revised Sec. 106.8(a) to clarify that any person
may report sexual harassment (whether or not the person reporting is
also the person who is alleged to be the victim of sexual
harassment) by using any of the listed contact information for the
Title IX Coordinator, and a report can be made at any time
(including during non-business hours) by using the telephone number
or email address, or by mail to the office address, listed for the
Title IX Coordinator.
\448\ For further discussion, see the ``Section 106.44(a)
`education program or activity' '' subsection of the ``Section
106.44 Recipient's Response to Sexual Harassment, Generally''
section of this preamble.
---------------------------------------------------------------------------
Changes: The Department has revised Sec. 106.44(a) to state that
``education program or activity'' includes locations, events, or
circumstances over which the recipient exercised substantial control
over both the respondent and the context in which the harassment
occurs.
Comments: Commenters stated the proposed rules constitute clear
violations of the purpose of Title IX. Commenters expressed concern
that the proposed regulations will eliminate the Department's
enforcement of Title IX or hurt Title IX, or are contrary to the
congressional purpose of Title IX. Commenters expressed concern that
OCR would not be able to investigate a school or begin the processes
required for enforcement unless a school's actions already reached the
levels necessary for enforcement, effectively eliminating OCR's ability
to seek the informal means of enforcement built into the statute, such
as resolution agreements with schools.
Discussion: These final regulations adhere closely to both the
plain meaning of Title IX and to Federal case law interpreting Title
IX; therefore, they are not a violation of the text or purpose of Title
IX. These final regulations provide greater clarity for recipients, as
recipients will know how the Department requires recipients to respond
to reports of sexual harassment.
OCR will continue to vigorously enforce Title IX to achieve
recipients' compliance, including by reaching voluntary resolution
agreements. Nothing in these final regulations prevents the Department
from carrying out its enforcement obligations under Title IX. For
example, if the Department receives a complaint that a recipient did
not offer supportive measures in response to a report of sexual
harassment, the Department may enter into a resolution agreement with
the recipient in which the recipient agrees to offer supportive
measures for that complainant and for other complainants prospectively.
Changes: None.
Comments: Commenters suggested the final regulations should abolish
or limit peer harassment liability for schools. Commenters argued that
the Davis decision applying peer harassment liability does not prevent
the Department from abolishing such liability as long as there are
informed reasons for doing so. Commenters asserted that courts will
defer to agency reinterpretations of statutes when the agency supplies
a reasoned explanation for its decision, under Chevron deference.\449\
---------------------------------------------------------------------------
\449\ Commenters cited: Chevron, U.S.A., Inc. v. Natural Res.
Defense Council, Inc., 467 U.S. 837, 844-45 (1984) (holding that
``considerable weight should be accorded to an executive
department's construction of a statutory scheme it is entrusted to
administer'').
---------------------------------------------------------------------------
Discussion: The Department acknowledged in the NPRM that it is not
required to adopt the deliberate indifference standard articulated by
the Supreme Court.\450\ As explained in the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, the Department is persuaded by the policy rationales
relied on by the Court and continues to believe that the Supreme
Court's rubric for addressing sexual harassment--including peer sexual
harassment--is the best policy approach, with the adaptions made in
these final regulations for administrative enforcement.
---------------------------------------------------------------------------
\450\ 83 FR 61468. For discussion of the way these final
regulations adopt the Supreme Court's deliberate indifference
liability standard, but tailor that standard to achieve policy aims
of administrative enforcement of Title IX's non-discrimination
mandate, see the ``Deliberate Indifference'' subsection of the
``Adoption and Adaption of the Supreme Court's Framework to Address
Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------
Changes: None.
General Support and Opposition for the Grievance Process in Sec.
106.45
Comments: Many commenters favored the Sec. 106.45 grievance
process on grounds that it would provide greater clarity, bring
fairness to all parties, increase public confidence in school-level
Title IX proceedings, and decrease the likelihood that recipients will
be sued in court for mishandling Title IX sexual harassment cases.
Several commenters expressed support for Sec. 106.45 on the ground
that whether false accusations occur at a low rate or a higher rate,
false accusations against accused students and employees, and their
support networks of family and friends, have devastating consequences.
Several commenters included personal stories of being falsely accused,
or having family members falsely accused, including where the
complainant recanted the allegations after the commenter's loved one
had committed suicide. One commenter asserted that the ``fraud
triangle'' theory that explains the dynamics around fraud-related
offenses can also illustrate the importance of due process protections
in the sexual misconduct context, because rationalization is one of the
three legs of the triangle (the other two being pressure and
opportunity), and due process protections serve to discourage people
from rationalizing dishonesty by ensuring that allegations are
investigated before being acted upon.
Some commenters believed that Sec. 106.45 will rectify sex
discrimination against men, and some believed that it will correct sex
discrimination against women. A few commenters supported the due
process protections in Sec. 106.45 on the ground that lack of due
process in any system, whether courts of law or educational institution
tribunals, often results in persons of color and persons of low
socioeconomic status being wrongly or falsely convicted or punished.
Several commenters asserted that men of color are more likely than
white men to be accused of sexual misconduct and a system that lacks
due process thus results in men of color being unfairly denied
educational opportunities. One commenter asserted that due process
exists not only to protect all individuals irrespective of sex, race,
or ethnicity from persecution by those in power but also exists to
ensure those in authority are enacting real justice, and that when due
process is abandoned it is always the most marginalized and vulnerable
who suffer; other commenters echoed that theme. A few commenters
claimed that innocent people do not need due process, or that due
process only helps those who are guilty.
Several commenters noted that principles of due process developed
over centuries of Western legal history, while imperfect, are most apt
to find truth in matters involving high-stakes factual disputes, and
that no cause or movement justifies abandoning such principles to
equate an accusation with a determination of responsibility. A few
commenters expressed support for the due process protections in Sec.
106.45 by noting that Supreme Court Justice Ruth Bader Ginsburg has
expressed public support for enhancing campus due process, and that
public opinion polls have shown public support for due process on
college campuses.
Some commenters supported Sec. 106.45 because Title IX sexual
harassment proceedings often involve contested proceedings with
plausible competing narratives and a lack of disinterested witnesses,
and the proposed rules do not give an advantage to either
[[Page 30095]]
complainants or respondents, but rather provide a web of protections
for both sides formulated to ensure as fair and unbiased a result as
possible. One commenter recounted a personal experience managing a
university's sexual assault response program and opined that because
that university's process was widely viewed as fair and impartial to
both sides, the program held students responsible where the evidence
showed responsibility, including against star athletes; the commenter
believed that due process was essential to the program's
credibility.\451\
---------------------------------------------------------------------------
\451\ Commenters cited: Gary Pavela & Gregory Pavela, The
Ethical and Educational Imperative of Due Process, 38 Journal of
Coll. & Univ. L. 567 (2012) (arguing that ``due process--broadly
defined as an inclusive mechanism for disciplined and impartial
decision making--is essential to the educational aims of
contemporary higher education and to fostering a sense of legitimacy
in college and university policies.'').
---------------------------------------------------------------------------
At least one commenter supported the Sec. 106.45 grievance process
as a lawful method of implementing Title IX's directive that the
Department ``effectuate the provisions of'' Title IX, citing 20 U.S.C.
1681 and 1682, arguing that the Department's proposed grievance
process: Adopts procedures designed to reduce or eliminate sex
discrimination; prevents violations of substantive non-discrimination
mandates; and constitutes a reasonable means of guarding against sex
discrimination and unlawful retaliation, particularly because the Sec.
106.45 requirements are sex neutral and narrowly tailored to prevent
sex discrimination. One commenter asserted with approval that the Sec.
106.45 grievance process not only expressly prohibits bias and
conflicts of interest, but also promotes full and fair adversarial
procedures and requires decision-makers to give reasons that explain
their decisions--all of which have been shown to prevent biased
outcomes.
One commenter suggested improving Sec. 106.45 by clarifying
whether the procedures in the ``investigations'' section apply
throughout the entire grievance process or only to the investigation
portion of a grievance process. Another commenter expressed concern
that recipients wishing to avoid applying the Sec. 106.45 grievance
process will process complaints about sexual misconduct outside their
Title IX offices under non-Title IX code of conduct provisions and
suggested the Department take action to ensure that recipients cannot
circumvent Sec. 106.45 by charging students with non-Title IX student
conduct code violations. One commenter asked the Department to clarify
whether Sec. 106.45 applies to non-sexual harassment sex
discrimination complaints.
Discussion: The Department appreciates the variety of reasons for
which commenters expressed support for the Sec. 106.45 grievance
process. The provisions in Sec. 106.45 are grounded in principles of
due process to promote equitable treatment of complainants and
respondents and protect each individual involved in a grievance process
without bias against an individual's sex, race, ethnicity,
socioeconomic status, or other characteristics, by focusing the
proceeding on unbiased, impartial determinations of fact based on
relevant evidence. The Department understands that some commenters
believe Sec. 106.45 primarily benefits women and others believe such
provisions primarily benefit men; however, the Department agrees with
still other commenters who support Sec. 106.45 because its procedural
protections provide all complainants and respondents with a consistent,
reliable process without regard to sex. The Department will enforce
Sec. 106.45 in a manner that does not discriminate based on sex. The
Department agrees that due process of law exists to protect all
individuals, and disagrees with commenters who claim that only guilty
people need due process protections; the evolution of the American
concept of due process of law has revolved around recognition that for
justice to be done, procedural protections must be offered to those
accused of even the most heinous offenses--precisely because only
through a fair process can a just conclusion of responsibility be made.
Further, the Sec. 106.45 grievance process grants procedural rights to
complainants and respondents so that both parties benefit from strong,
clear due process protections.
In response to a commenter's request, the final regulations include
two changes to clarify that procedures and requirements listed in Sec.
106.45 apply throughout the entirety of a grievance process. First, the
Department uses the phrase ``grievance process'' and ``a grievance
process that complies with Sec. 106.45'' throughout the final
regulations rather than ``grievance procedures'' or ``due process
protections'' to reinforce that the entirety of Sec. 106.45 applies
when a formal complaint necessitates a grievance process. Second, and
in particular response to the commenter's concern, the final
regulations revise the investigation portion of Sec. 106.45 to begin
with the phrase ``When investigating a formal complaint, and throughout
the grievance process, a recipient must . . .'' (emphasis added) to
clarify that the procedures and protections in Sec. 106.45(b)(5) apply
to investigations but also throughout the grievance process.
The Department appreciates the commenter's concern that Sec.
106.45 not be circumvented by processing sexual harassment complaints
under non-Title IX provisions of a recipient's code of conduct. The
definition of ``sexual harassment'' in Sec. 106.30 constitutes the
conduct that these final regulations, implementing Title IX, address.
Allegations of conduct that do not meet the definition of ``sexual
harassment'' in Sec. 106.30 may be addressed by the recipient under
other provisions of the recipient's code of conduct, and we have
revised Sec. 106.45(b)(3) to clarify that intent; however, where a
formal complaint alleges conduct that meets the Title IX definition of
``sexual harassment,'' a recipient must comply with Sec. 106.45.\452\
---------------------------------------------------------------------------
\452\ Section 106.45(b) (``For the purpose of addressing formal
complaints of sexual harassment, a recipient's grievance process
must comply with the requirements of this section.'').
---------------------------------------------------------------------------
In response to a commenter's request for clarification, Sec.
106.45 applies to formal complaints alleging sexual harassment under
Title IX, but not to complaints alleging sex discrimination that does
not constitute sexual harassment (``non-sexual harassment sex
discrimination''). Complaints of non-sexual harassment sex
discrimination may be filed with a recipient's Title IX Coordinator for
handling under the ``prompt and equitable'' grievance procedures that
recipients must adopt and publish pursuant to Sec. 106.8(c).
Changes: To clarify that the ten groups of provisions that comprise
Sec. 106.45 \453\ apply as a cohesive whole to the handling of a
formal complaint of sexual harassment, the Department has changed
terminology throughout the final regulations to refer to ``a grievance
process complying with Sec. 106.45'' (for example, in Sec.
106.44(a)), and uses the phrase ``grievance process'' rather than
``grievance procedures'' within Sec. 106.45. Additionally, Sec.
106.45(b)(5) now clarifies that the procedures a recipient must follow
during investigation of a formal complaint also must apply throughout
the entire grievance process.
---------------------------------------------------------------------------
\453\ See the ``Summary of Sec. 106.45'' subsection of the
``Role of Due Process in the Grievance Process'' section of this
preamble.
---------------------------------------------------------------------------
Comments: Two commenters representing trade associations of men's
fraternities and women's sororities requested that the Department
specify that an individual's Title IX sexual harassment violation must
be
[[Page 30096]]
adjudicated as an individual case unless specific evidence clearly
implicates group responsibility, in which case the recipient must apply
a separate grievance process (with the same due process protections
contained in Sec. 106.45) to adjudicate group or organizational
responsibility. These commenters asserted that in the past few years
more than 20 postsecondary institutions have suspended entire systems
of fraternities and sororities upon reports of a group member sexually
harassing a complainant, and that such action chills and deters victims
from reporting sexual harassment because some victims do not wish to
see broad groups of people punished for the wrongdoing of an individual
perpetrator.
One commenter supported Sec. 106.45 but asked the Department to
require recipients to punish individuals who make false accusations.
Discussion: The final regulations address recipients' obligations
to respond to sexual harassment, and Sec. 106.45 obligates a recipient
to follow a consistent grievance process to investigate and adjudicate
allegations of sexual harassment. In Sec. 106.30, ``respondent'' is
defined as ``an individual who has been reported to be the perpetrator
of conduct that could constitute sexual harassment.'' The Sec. 106.45
grievance process, therefore, contemplates a proceeding against an
individual respondent to determine responsibility for sexual
harassment.\454\ The Department declines to require recipients to apply
Sec. 106.45 to groups or organizations against whom a recipient wishes
to impose sanctions arising from a group member being accused of sexual
harassment because such potential sanctions by the recipient against
the group do not involve determining responsibility for perpetrating
Title IX sexual harassment but rather involve determination of whether
the group violated the recipient's code of conduct. Application of non-
Title IX provisions of a recipient's code of conduct lies outside the
Department's authority under Title IX. For the same reason, the
Department declines to require a recipient to punish individuals who
make false accusations, even if the accusations involve sexual
harassment. An individual, or group of individuals, who believe a
recipient has treated them differently on the basis of sex in a manner
prohibited under Title IX may file a complaint of sex discrimination
with the recipient's Title IX Coordinator for handling under the
``prompt and equitable'' grievance procedures recipients must adopt and
publish pursuant to Sec. 106.8(c).
---------------------------------------------------------------------------
\454\ As discussed in the ``Dismissal and Consolidation of
Formal Complaints'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble, Sec.
106.45(b)(4) gives recipients the discretion to consolidate formal
complaints involving multiple parties where the allegations of
sexual harassment arise from the same facts or circumstances; in
such consolidated matters, the grievance process applies to more
than one complainant and/or more than one respondent, but each party
is still an ``individual'' and not a group or organization.
---------------------------------------------------------------------------
Changes: None.
Comments: Many commenters expressed concern that the Sec. 106.45
grievance process unduly restricts recipients' flexibility and
discretion in structuring and applying recipients' codes of conduct and
that it ignores unique needs of the wide array of schools, colleges,
and universities that differ in size, location, mission, public or
private status, and resources, and imposes a Federal one-size-fits-all
mandate on recipients. In support of granting flexibility and
discretion to recipients, several commenters pointed the Department to
Federal and State court opinions for the proposition that the internal
decisions of colleges and universities, including academic and
disciplinary matters, are given considerable deference by courts.\455\
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\455\ Commenters cited, e.g.: Regents of Univ. of Mich. v.
Ewing, 474 U.S. 214, 225 (1985); New Jersey v. T.L.O., 469 U.S. 325
(1985); Doe v. Hamilton Cnty. Bd. of Educ., 329 F. Supp. 3d 543, 470
(E.D. Tenn. 2018).
---------------------------------------------------------------------------
Many commenters expressed concerns that the Sec. 106.45 grievance
process is too quasi-judicial to be applied in a setting where schools
and colleges are not courts of law and that it ignores the educational
purpose of school discipline. A few commenters requested that the
Department incorporate more features of legal and court systems into
Sec. 106.45, including importing the Federal Rules of Evidence, the
Federal Rules of Civil Procedure, and the Federal Rules of Criminal
Procedure, and some of the rights afforded to criminal defendants under
the U.S. Constitution such as protection against double jeopardy,
protection against self-incrimination, and provision of public
defenders (or provision of attorneys for both parties in a school-level
Title IX proceeding).
Many commenters objected to Sec. 106.45 on the ground that it will
be burdensome and costly for many recipients to adopt and implement.
Some commenters believed that Sec. 106.45 heightens the
adversarial aspects of a grievance process, and others asserted that
increasing the adversarial nature of the process undermines Title IX as
a civil rights mechanism. Some commenters asserted that adversarial
proceedings advantage students with greater financial resources who can
afford to hire an attorney over socioeconomically disadvantaged
students.
Discussion: The Department acknowledges the vast diversity among
schools, colleges, and universities, the variety of systems
historically used to enforce codes of conduct, and the desirability of
each recipient retaining flexibility and discretion to manage its own
affairs. With respect to Title IX sexual harassment, 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 education
program or activity of a recipient of Federal financial assistance. 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.
The Department agrees with commenters that numerous Federal and
State court opinions confirm the proposition that schools, colleges,
and universities deserve considerable deference as to their internal
affairs including academic and disciplinary decisions. The final
regulations respect the right of recipients to make such decisions
without being second guessed by the Department. The final regulations
do not address recipients' academic decisions (including curricula, or
dismissals for failure to meet academic standards), and do not second
guess disciplinary decisions. The Department does not require
disciplinary sanctions after a determination of responsibility, and
does not prescribe any particular form of sanctions.\456\ Rather, Sec.
106.45 prescribes a grievance process focused on reaching an accurate
determination regarding responsibility so that recipients and the
Department can
[[Page 30097]]
ensure that victims of sexual harassment receive remedies designed to
restore or preserve a victim's equal access to the recipient's
education program or activity. Because Sec. 106.45 provides a
grievance process designed to effectuate the purpose of Title IX, a
Federal civil rights statute, the Title IX grievance process is not
purely an internal decision of the recipient. The Department believes
that the Sec. 106.45 grievance process will promote consistency,
transparency, and predictability for students, employees, and
recipients, ensuring that enforcement of Title IX sexual harassment
rules does not vary needlessly from school to school or college to
college. The Department notes that courts have traditionally
distinguished between student dismissal for misconduct, where more due
process is required, and dismissal for academic failure, where less due
process is owed, because of the subjectivity of a school's conclusion
that a student has failed to meet academic standards. Where misconduct
is at issue, however, conclusions about whether the misconduct took
place involve objective factual determinations rather than subjective
academic judgments, and procedures rooted in fundamental due process
principles can ``safeguard'' the accuracy of determinations about
misconduct.\457\
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\456\ The Department acknowledges that this approach departs
from the 2001 Guidance, which stated that where a school has
determined that sexual harassment occurred, effective corrective
action ``tailored to the specific situation'' may include particular
sanctions against the respondent, such as counseling, warning,
disciplinary action, or escalating consequences. 2001 Guidance at
16. For reasons described throughout this preamble, the final
regulations modify this approach to focus on remedies for the
complainant who was victimized rather than on second guessing the
recipient's disciplinary sanction decisions with respect to the
respondent. However, the final regulations are consistent with the
2001 Guidance's approach inasmuch as Sec. 106.45(b)(1)(i) clarifies
that ``remedies'' may consist of individualized services similar to
those described in Sec. 106.30 as ``supportive measures'' except
that remedies need not avoid disciplining or burdening the
respondent.
\457\ Lisa L. Swem, Due Process Rights in Student Disciplinary
Matters, 14 Journal of Coll. & Univ. L. 359, 361-62 (1987) (citing
Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978)
where the Supreme Court held that procedures leading to medical
student's dismissal for failing to meet academic standards did not
violate due process of law under the Fourteenth Amendment) (noting
that courts often distinguish between student dismissal for
misconduct, where more due process is required, and dismissal for
academic failure, where less due process is owed, because of the
subjectivity of a school's conclusion that a student has failed to
meet academic standards); Horowitz, 435 U.S. at 95 fn. 5 (Powell,
J., concurring) (``A decision relating to the misconduct of a
student requires a factual determination as to whether the conduct
took place or not. The accuracy of that determination can be
safeguarded by the sorts of procedural protections traditionally
imposed under the Due Process Clause.'').
---------------------------------------------------------------------------
Within the standardized Sec. 106.45 grievance process, recipients
retain significant flexibility and discretion, including decisions to:
Designate the reasonable time frames that will apply to the grievance
process; use a recipient's own employees as investigators and decision-
makers or outsource those functions to contractors; determine whether a
party's advisor of choice may actively participate in the grievance
process; select the standard of evidence to apply in reaching
determinations regarding responsibility; use an individual decision-
maker or a panel of decision-makers; offer informal resolution options;
impose disciplinary sanctions against a respondent following a
determination of responsibility; and select procedures to use for
appeals.
The Department agrees with commenters that schools, colleges, and
universities are educational institutions and not courts of law. The
Sec. 106.45 grievance process does not attempt to transform schools
into courts; rather, the prescribed framework provides a structure by
which schools reach the factual determinations needed to discern when
victims of sexual harassment are entitled to remedies. The Department
declines to import into Sec. 106.45 comprehensive rules of evidence,
rules of civil or criminal procedure, or constitutional protections
available to criminal defendants. The Department recognizes that
schools are neither civil nor criminal courts, and acknowledges that
the purpose of the Sec. 106.45 grievance process is to resolve formal
complaints of sexual harassment in an education program or activity,
which is a different purpose carried out in a different forum from
private lawsuits in civil courts or criminal charges prosecuted by the
government in criminal courts. The Department believes that the final
regulations prescribe a grievance process with procedures fundamental
to a truth-seeking process reasonably adapted for implementation in an
education program or activity.
The Department understands commenters' objections that Sec. 106.45
will be burdensome and costly for many recipients to adopt and
implement. The Department also appreciates that many of these
commenters, and additional commenters, recognized that receipt of
Federal financial assistance requires recipients to comply with
regulations effectuating Title IX's non-discrimination mandate and that
the benefits of protecting civil rights outweigh the monetary costs of
compliance. While the Department is required to estimate the benefits
and costs of every regulation, and has considered those benefits and
costs for these final regulations, our decisions regarding the final
regulations rely on legal and policy considerations designed to
effectuate Title IX's civil rights objectives, and not on the estimated
cost likely to result from these final regulations.
The Department further acknowledges commenters' concerns that
schools, colleges, and universities exist primarily to educate, and are
not courts with a primary purpose, focus, or expertise in administering
proceedings to resolve factual disputes. Many commenters expressed a
similar concern, that recipients may view a recipient's code of conduct
as an educational process rather than a punitive process, and these
recipients are thus uncomfortable with a grievance process premised on
adversarial aspects of resolving the truth of factual allegations. With
respect to Title IX sexual harassment, however, in order to carry out a
recipient's responsibility to provide appropriate remedies to victims
suffering from that form of sex discrimination, the recipient must
administer a grievance process designed to reach reliable factual
determinations and do so in a manner free from sex-based bias. In the
context of sexual harassment that process is often inescapably
adversarial in nature where contested allegations of serious misconduct
carry high stakes for all participants. The standardized framework of
the Sec. 106.45 grievance process will thus assist recipients in
complying with the recipients' Title IX obligation to provide remedies
for sexual harassment victims when a respondent is found responsible
for sexual harassment, by providing recipients with a prescribed
structure for resolving highly contested factual disputes between
members of the recipient's own community consistent with due process
principles, in recognition that recipients may not already have such a
structure in place.
Recipients retain the right and ability to use the disciplinary
process as an educational tool rather than a punitive tool because the
Sec. 106.45 grievance process leaves recipients with wide discretion
to utilize informal resolution processes \458\ and does not mandate or
second guess disciplinary sanctions.\459\ Rather, the Sec. 106.45
grievance process focuses on the purpose of Title IX: To give
individuals protections against discriminatory practices and ensure
that recipients provide victims of sexual harassment with remedies to
help overcome the denial of equal access to education caused by sex
discrimination in the form of sexual harassment.\460\
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\458\ Section 106.45(b)(9).
\459\ Section 106.44(b)(2).
\460\ As discussed throughout this preamble, including in the
``Section 106.44(a) Deliberate Indifference Standard'' subsection of
the ``Section 106.44 Recipient's Response to Sexual Harassment,
Generally'' section of this preamble, the final regulations also
mandate that recipients offer supportive measures to complainants
with or without a formal complaint so that complainants receive
meaningful assistance from their school in restoring or preserving
equal access to education even in situations that do not result in
an investigation and adjudication under Sec. 106.45.
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The Department disagrees with commenters who believe that Sec.
106.45
[[Page 30098]]
heightens the adversarial nature of the grievance process. The
Department believes that sexual harassment allegations inherently
present an adversarial situation; as some commenters pointed out,
campus sexual misconduct situations often present plausible competing
narratives under circumstances that pose challenges to reaching
accurate factual determinations.\461\ A grievance process that
standardizes procedures by which parties participate equally serves the
purpose of reaching reliable determinations resolving factual disputes
presented in formal complaints alleging sexual harassment, in a manner
free from sex-based bias, and increasing confidence in the outcomes of
such cases. Acknowledging that sexual harassment allegations present
adversarial circumstances and that parties may benefit from guidance,
advice, and assistance in such a setting, the Department requires
recipients to allow the parties to select advisors of choice to assist
each party throughout the grievance process.\462\ In recognition that
Title IX governs recipients, not parties, the Department obligates the
recipient to carry both the burden of proof and the burden of
collecting evidence sufficient to reach a determination regarding
responsibility, while also providing parties equal opportunity (but not
the burden or obligation) to gather and present witnesses and other
evidence, review and challenge the evidence collected, and question
other parties and witnesses.\463\
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\461\ See, e.g., EduRisk by United Educators, Confronting Campus
Sexual Assault: An Examination of Higher Education Claims 1 (2015)
(``Recent legal and regulatory mandates require virtually all
colleges and universities to investigate and adjudicate reports of
sexual assault. An analysis of claims reported to United Educators
(UE) reveals that institutions respond to cases of sexual assault
that the criminal justice system often considers too difficult to
succeed at trial and obtain a conviction. Our data indicates these
challenging cases involve little or no forensic evidence, delays in
reporting, use of alcohol, and differing accounts of consent.'').
\462\ Section 106.45(b)(5)(iv).
\463\ Section 106.45(b)(5)(i) through (vii); Sec. 106.45(b)(6).
We also note that Sec. 106.45(b)(9) gives recipients the discretion
to offer and facilitate informal resolution processes, such as
mediation or restorative justice, subject to each party voluntarily
agreeing after giving informed, written consent. Informal resolution
may present a way to resolve sexual harassment allegations in a less
adversarial manner than the investigation and adjudication
procedures that comprise the Sec. 106.45 grievance process.
Informal resolution may only be offered after a formal complaint has
been filed, so that the parties understand what the grievance
process entails and can decide whether to voluntarily attempt
informal resolution as an alternative. Recipients may never require
any person to participate in information resolution, and may never
condition enrollment, employment, or enjoyment of any other right or
privilege upon agreeing to informal resolution. Informal resolution
is not an option to resolve allegations that an employee sexually
harassed a student.
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The Department does not agree that an adversarial process runs
contrary to Title IX as a civil rights mechanism. To the extent that
commenters raising this concern believe that adversarial systems,
historically or generally, disadvantage people already marginalized due
to sex, race, ethnicity, and other characteristics, the Department will
enforce all provisions of Sec. 106.45 without regard to any party's
sex, race, ethnicity, or other characteristic, and expects recipients
to implement Sec. 106.45 without bias of any kind. The Department
further notes that the Sec. 106.45 grievance process is one particular
part of a recipient's response to a formal complaint; Sec. 106.44(a)
obligates a recipient to provide a prompt, non-deliberately indifferent
response to each complainant including offering supportive measures,
whether or not the complainant files a formal complaint or participates
in a Sec. 106.45 grievance process. The Department believes that Sec.
106.45 serves the important purpose of effectuating Title IX as a civil
rights non-discrimination mandate, and the final regulations provide
for complainants to receive supportive measures to preserve or restore
equal access to education even where a complainant does not wish to
participate in the adversarial aspects of a Sec. 106.45 grievance
process.
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 to assist the party without fee or charge. The Department
wishes to emphasize that the status of any party's advisor (i.e.,
whether a party's advisor is an attorney or not), the financial
resources of any party, and the potential of any party to yield
financial benefits to a recipient, must not affect the recipient's
compliance with Sec. 106.45, including the obligation to objectively
evaluate relevant evidence and use investigators and decision-makers
free from bias or conflicts of interest.
Changes: In response to comments concerning specific topics
addressed in Sec. 106.45, the Department has made changes in the final
regulations that increase recipients' flexibility and discretion while
preserving the benefits of a standardized grievance process that
promotes reliable fact-finding.\464\
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\464\ See, e.g., the discussion in the ``Other Language/
Terminology Comments'' subsection of the ``Section 106.30
Definitions'' section of this preamble (noting that recipients may
decide whether to calculate time frames using calendar days, school
days, or other method); Sec. 106.45(b)(6)(i) (allowing, but not
requiring, live hearings to be held virtually through use of
technology); Sec. 106.45(b)(5)(vi) (removing the requirement that
evidence in the investigation be provided to the parties using a
file-sharing platform); Sec. 106.45(b)(7)(i) (removing the
requirement that the preponderance of the evidence standard may be
used only if that standard is also used for recipients' non-sexual
harassment code of conduct violations).
---------------------------------------------------------------------------
Comments: Some commenters argued that educational institutions
should not have the authority to adjudicate criminal accusations, that
sexual assault and harassment should be treated like a crime, and that
investigations into sex crimes should be solely in the hands of law
enforcement (such as the police, district attorneys, State attorney's
offices, or U.S. Department of Justice). Some commenters believed the
alleged victim should be required to report directly to law enforcement
and schools should facilitate survivors' access to the appropriate
authorities. Some commenters expressed concern that the proposed rules
exclude law enforcement from the investigation process. Several
commenters concluded that student conduct hearings are too different
from criminal trials to be capable of addressing criminal allegations.
One commenter believed that universities are incapable of fair
assessment in criminal sex offense matters because universities have a
strong desire to be seen as advocates for social change; another
commenter believed schools have already made a mockery out of campus
sexual assault proceedings shown by a practice the commenter
characterized as ``the first to accuse wins'' that has led to an
epidemic of false allegations. One commenter argued that the Department
must decide if recipients can defer completely to the criminal justice
system regarding sexual assault, or else require recipients to
implement procedures that are fair, transparent, and adhere to
constitutional protections. One commenter believed that alleged
assailants should be held responsible in a court of law and that
victims should have the right to pursue court action at any point in
time.
Some commenters argued that the proposed rules are too similar to
criminal court procedures that should not apply to Title IX proceedings
because a university disciplinary proceeding does not result in loss of
life or liberty for the respondent. Other commenters expressed support
for the proposed rules on the belief that the proposed rules require
many due process protections existing in criminal proceedings, which
these commenters supported because the high
[[Page 30099]]
consequences in Title IX cases justify procedural safeguards similar to
those in court systems. One commenter suggested that before resorting
to the formal ``court-like'' proceedings in the proposed rules, parties
to a sexual assault allegation should always first attempt mediation.
Several commenters suggested that the Department establish
``regional centers'' for investigation and adjudication of Title IX
sexual harassment (or at least as to sexual assault), or at least
advise colleges and universities that such recipients can join with
other similar institutions in their geographic area to form regional
centers charged with conducting the investigations and adjudications
required under the proposed rules. These commenters asserted using such
a regional center model may benefit recipients because instead of
performing investigations and conducting hearings with recipients' own
personnel (who may not have sufficient training and experience, and who
have inherent potential conflicts of interest), recipients could
outsource these functions to centers employing personnel with
sufficient expertise and experience to perform investigations and
adjudications without conflicts of interest, impartially, and in
compliance with the final regulations. One commenter examined
variations on potential models for such regional centers, noting that
one model might involve a consortium of institutions forming
independent 501(c)(3) organizations to cooperatively handle member
institutions' needs for investigation and adjudication of Title IX
sexual harassment, and a variation of that model would involve those
functions handled under the auspices of State government (such as a
State attorney general's office); this commenter urged the Department
to remind recipients that such models exist as possible methods for
better handling obligations under these final regulations, contended
that suggesting such models without mandating them is consistent with
the Department's overall approach of not dictating specific details
more than might be reasonably necessary, and expressed the belief that
different types of regional centers with different structures can be
tried out and continually improved and refined for what works best in
practice for different types of institutions, thus innovating better
ways for recipients to competently handle Title IX sexual harassment
allegations.
Discussion: The Department understands the concerns of some
commenters who believe that educational institutions should not have
authority to adjudicate criminal accusations and that law enforcement
and criminal justice systems are the appropriate bodies to investigate,
prosecute, and penalize criminal charges. However, the Supreme Court
has held that sexual misconduct that constitutes a crime under State
law may also constitute sex discrimination under Title IX, and the
Department has the responsibility of enforcing Title IX.\465\ The
Department is not regulating sex crimes, per se, but rather is
addressing a type of discrimination based on sex. That some Title IX
sexual harassment might constitute criminal conduct does not alter the
importance of identifying and responding to sex discrimination that is
prohibited by Title IX. By requiring recipients to address sex
discrimination that takes the form of sexual harassment in a
recipient's education program or activity, the Department is not
requiring recipients to adjudicate criminal charges or replace the
criminal justice system. Rather, the Department is requiring recipients
to adjudicate allegations that sex-based conduct has deprived a
complainant of equal access to education and remedy such situations to
further Title IX's non-discrimination mandate.
---------------------------------------------------------------------------
\465\ See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 278, 292 (1998) (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 recognizes that some Title IX sexual harassment also
constitutes criminal conduct under a variety of State laws and that the
potential exists for the same set of allegations to result in
proceedings under both Sec. 106.45 and criminal laws. Where
appropriate, the final regulations acknowledge this intersection; \466\
however, a recipient cannot discharge its legal obligation to provide
education programs or activities free from sex discrimination by
referring Title IX sexual harassment allegations to law enforcement (or
requiring or advising complainants to do so),\467\ because the purpose
of law enforcement differs from the purpose of a recipient offering
education programs or activities free from sex discrimination. Whether
or not particular allegations of Title IX sexual harassment also meet
definitions of criminal offenses, the recipient's obligation is to
respond supportively to the complainant and provide remedies where
appropriate, to ensure that sex discrimination does not deny any person
equal access to educational opportunities. Nothing in the final
regulations prohibits or discourages a complainant from pursuing
criminal charges in addition to a Sec. 106.45 grievance process.
---------------------------------------------------------------------------
\466\ Section 106.45(b)(1)(v) provides that the recipient's
designated reasonably prompt time frame for completion of a
grievance process is subject to temporary delay or limited extension
for good cause, which may include concurrent law enforcement
activity. Section 106.45(b)(6)(i) provides that the decision-maker
cannot draw any inference about the responsibility or non-
responsibility of the respondent solely based on a party's failure
to appear or answer cross-examination questions at a hearing; this
provision applies to situations where, for example, a respondent is
concurrently facing criminal charges and chooses not to appear or
answer questions to avoid self-incrimination that could be used
against the respondent in the criminal proceeding. Further, subject
to the requirements in Sec. 106.45 such as that evidence sent to
the parties for inspection and review must be directly related to
the allegations under investigation, and that a grievance process
must provide for objective evaluation of all relevant evidence,
inculpatory and exculpatory, nothing in the final regulations
precludes a recipient from using evidence obtained from law
enforcement in a Sec. 106.45 grievance process. Sec.
106.45(b)(5)(vi) (specifying that the evidence directly related to
the allegations may have been gathered by the recipient ``from a
party or other source'' which could include evidence obtained by the
recipient from law enforcement) (emphasis added); Sec.
106.45(b)(1)(ii).
\467\ The 2001 Guidance takes a similar position: ``In some
instances, a complainant may allege harassing conduct that
constitutes both sex discrimination and possible criminal conduct.
Police investigations or reports may be useful in terms of fact
gathering. However, because legal standards for criminal
investigations are different, police investigations or reports may
not be determinative of whether harassment occurred under Title IX
and do not relieve the school of its duty to respond promptly and
effectively.'' 2001 Guidance at 22.
---------------------------------------------------------------------------
The Department disagrees with commenters who argued that recipients
are not capable of addressing Title IX sexual harassment allegations
when such allegations also constitute allegations of criminal activity.
The Department has carefully constructed the Sec. 106.45 grievance
process for application by a recipient in an education program or
activity keeping in mind that schools, colleges, and universities exist
first and foremost to educate and do not function as courts of law. The
Department understands commenters' assertions that some recipients
desire to advocate social change and that some have conducted unfair,
biased sexual misconduct proceedings; however, the Department believes
that the Sec. 106.45 grievance process reflects a standardized
framework that recipients are capable of applying to reach fair,
unbiased determinations about sex discrimination in the form of sexual
harassment in recipients' education programs or activities. The
procedures required under Sec. 106.45 are those the Department has
determined are most likely to lead to reliable outcomes in the context
of Title IX sexual harassment. The Sec. 106.45
[[Page 30100]]
grievance process is inspired by principles of due process; however,
the final regulations do not incorporate by reference constitutional
due process required for criminal defendants, precisely because
recipients are reaching conclusions about sex discrimination in a very
different context than criminal courts reaching conclusions about
defendants' guilt or innocence of criminal charges. While the final
regulations permit recipients wide discretion to facilitate informal
resolution of formal complaints of sexual harassment,\468\ the
Department declines to require parties to attempt mediation before
initiating the formal grievance process. Every party should know that a
formal, impartial, fair process is available to resolve Title IX sexual
harassment allegations; where a recipient believes that parties may
benefit from mediation or other informal resolution process as an
alternative to the formal grievance process, the decision to attempt
mediation or other form of informal resolution should remain with each
party.
---------------------------------------------------------------------------
\468\ Section 106.45(b)(9) allows informal resolution processes,
but only with the written, voluntary consent of both parties, notice
to the parties about ramifications of such processes, and with the
exception that no such informal resolution may be offered with
respect to allegations that an employee sexually harassed a student.
---------------------------------------------------------------------------
The Department appreciates commenters' recommendations for using
regional center models and similar models involving voluntary,
cooperative efforts among recipients to outsource the investigation and
adjudication functions required under the final regulations. The
Department believes these models represent the potential for innovation
with respect to how recipients might best fulfill the obligation to
impartially reach accurate factual determinations while treating both
parties fairly. The Department encourages recipients to consider
innovative solutions to the challenges presented by the legal
obligation for recipients to fairly and impartially investigate and
adjudicate these difficult cases, and the Department will provide
technical assistance for recipients with questions about pursuing
regional center models.
Changes: None.
Comments: Several commenters challenged the Department's legal
authority to prescribe a standardized grievance process on the ground
that the Department's charge under Title IX is to prevent sex
discrimination, not to enforce constitutional due process or ensure
that respondents are disciplined fairly. These commenters pointed to
Federal court opinions holding that unfair discipline in a sexual
harassment proceeding does not, by itself, demonstrate that a
respondent was subjected to discrimination on the basis of sex, and
Federal court opinions holding that a university using a ``victim-
centered approach,'' or otherwise allegedly favoring sexual assault
complainants over respondents, is not necessarily discriminating
against respondents based on sex.\469\ These commenters argued that the
Department cannot therefore prescribe a grievance process premised on
the fairness of discipline as a way of furthering Title IX's
prohibition against sex discrimination.
---------------------------------------------------------------------------
\469\ See, e.g., cases cited by commenters referenced in the
``Section 106.45(a) Treatment of Complainants or Respondents Can
Violate Title IX'' subsection of the ``General Requirements for
Sec. 106.45 Grievance Process'' subsection of the ``Section 106.45
Recipient's Response to Formal Complaints'' section of this
preamble.
---------------------------------------------------------------------------
At least one commenter argued that the Supreme Court held in Gebser
that a school's failure to adopt grievance procedures for resolving
sexual harassment does not itself constitute discrimination under Title
IX, and the commenter argued that this shows that failure to have any
grievance procedures at all, much less a grievance process with
specific procedural protections, does not violate Title IX absent a
showing that such a failure was motivated by a student's sex.
Several commenters opposed Sec. 106.45 by noting that Federal
courts have not required the particular procedures required under Sec.
106.45, and challenging the Department's rationale for prescribing a
grievance process that provides more procedural protections than the
Supreme Court has required under constitutional due process. Some
commenters argued that the Department's authority under Title IX
permits the Department to regulate recipients' grievance procedures
only to ensure that the formal complaint process does not discriminate
against any party based on sex.
Several commenters requested that the Department reserve the
``stringent'' grievance process required under Sec. 106.45 only for
complaints that allege sexual assault, involve allegations of violence,
or otherwise subject a respondent to a potential sanction of expulsion.
A few commenters asserted that to the extent that bias and lack of
impartiality in school-level Title IX proceedings have resulted in sex
discrimination sometimes against women and other times against men, the
provisions in Sec. 106.45 prohibiting bias, conflicts of interest, and
sex stereotypes used in training materials, and requiring objective
evaluation of all relevant evidence and equal opportunity for the
parties to present, review, and challenge testimony and other evidence,
will reduce the likelihood that sex discrimination will occur in Title
IX proceedings because even if school officials harbor intentional or
unintentional sex-based biases or prejudices, such improper biases and
prejudices are less likely to affect the handling of the matter when
the process requires application of procedures grounded in principles
of due process.
Some commenters objected to the use of the words ``due process''
and ``due process protections'' in Sec. 106.45, believing that using
the term ``due process'' blurs the line between constitutional due
process owed by recipients that are State actors, and a ``fair
process'' that all recipients, including private institutions,
generally owe by contract with students and employees. These commenters
believe that using the term ``due process'' in Sec. 106.45 will lead
to confusion and misplaced expectations for students, and possibly lead
to increased litigation as students try to enforce constitutional due
process against private institutions that do not owe constitutional
protections. These commenters suggested that the phrase ``fair
process'' replace ``due process'' in Sec. 106.45.
Discussion: The Sec. 106.45 grievance process prescribed by the
final regulations directly serves the purposes of Title IX by providing
a framework under which recipients reliably determine the facts of
sexual harassment allegations in order to provide appropriate remedies
for victims of sexual harassment when the recipient has determined the
respondent is responsible. The Department recognizes that some
recipients are State actors with responsibilities to provide due
process of law to students and employees under the U.S. Constitution,
while other recipients are private institutions that do not have
constitutional obligations to their students and employees. The
Department believes that conforming to the Sec. 106.45 grievance
process likely will meet constitutional due process obligations in
Title IX sexual harassment proceedings, and as the Department has
recognized in guidance for nearly 20 years, Title IX rights must be
interpreted consistent with due process guarantees.\470\ However,
independent of constitutional due process, the purpose of the Sec.
106.45 grievance process is to provide
[[Page 30101]]
individuals with effective protection from discriminatory practices,
including remedies for sexual harassment victims, by consistent
application of procedures that improve perceptions that Title IX sexual
harassment allegations are resolved fairly, avoid injection of sex-
based biases and stereotypes into Title IX proceedings, and promote
reliable outcomes.
---------------------------------------------------------------------------
\470\ 2001 Guidance at 22.
---------------------------------------------------------------------------
The Department agrees with commenters who asserted that unfair
imposition of discipline, even in a way that violates constitutional
due process rights, does not necessarily equate to sex discrimination
prohibited by Title IX, and this is reflected in the final regulations.
Section 106.45(a), for example, states that a recipient's treatment of
a respondent ``may also constitute discrimination on the basis of sex
under title IX'' (emphasis added). The Sec. 106.45 grievance process
aims to provide both parties with equal rights and opportunities to
participate in the process, and to promote impartiality without favor
to complainants or respondents, both because treating a complainant or
respondent differently based on sex would violate Title IX, and because
a process lacking principles of due process risks bias that in the
context of sexual harassment allegations is likely to involve bias
based on stereotypes and generalizations on the basis of sex.
To the extent that the Supreme Court has not held that the specific
procedures required under Sec. 106.45 are required under
constitutional due process, Sec. 106.45 is both consistent with
constitutional due process, and an appropriate exercise of the
Department's authority to prescribe a consistent framework for handling
the unique circumstances presented by sexual harassment
allegations.\471\ For reasons discussed in this preamble with respect
to each provision in Sec. 106.45, the Department believes that each
provision appropriately incorporates principles of due process that
provide individuals with effective protection from discriminatory
practices, including remedies for sexual harassment victims, by
improving perceptions that Title IX sexual harassment allegations are
resolved fairly, avoiding injection of sex-based biases and stereotypes
into Title IX proceedings, and promoting reliable outcomes.
---------------------------------------------------------------------------
\471\ See discussion in the ``Role of Due Process in the
Grievance Process'' section of this preamble.
---------------------------------------------------------------------------
While commenters correctly observe that the Supreme Court's Title
IX opinions do not equate failure to adopt a grievance procedure with
sex discrimination under Title IX,\472\ the Supreme Court has also
acknowledged that the Department, under its administrative authority to
enforce Title IX, may impose regulatory requirements (such as adoption
and publication of grievance procedures) that further the purpose of
Title IX to prevent recipients of Federal financial assistance from
engaging in sex discriminatory practices and provide individuals with
effective protection against sex discriminatory practices.\473\ The
Department believes that Sec. 106.45 not only incorporates basic
principles of due process appropriately translated into the particular
context of sexual harassment in education programs and activities but
also serves to prevent, reduce, and root out sex-based bias that might
otherwise cause recipients to favor one party over the other.
---------------------------------------------------------------------------
\472\ See, e.g., Gebser, 524 U.S. at 291-92.
\473\ Id. at 292 (``Agencies generally have authority to
promulgate and enforce requirements that effectuate the statute's
non-discrimination mandate, 20 U.S.C. 1682, even if those
requirements do not purport to represent a definition of
discrimination under the statute.'').
---------------------------------------------------------------------------
The Department appreciates commenters' recognition that many
provisions of Sec. 106.45, which serve the purpose of increasing the
reliability of fact-finding, also decrease the likelihood that sex-
based biases, prejudices, or stereotypes will affect the investigation
and adjudication process in violation of Title IX's prohibition against
sex discrimination. The Sec. 106.45 grievance process effectuates
Title IX's non-discrimination mandate both by reducing the opportunity
for sex discrimination to impact investigation and adjudication
procedures through the recipient's own actions during the handling of a
complaint, and by promoting a reliable fact-finding process so that
recipients are held liable for providing remedies to victims of sex
discrimination in the form of sexual harassment perpetrated in the
recipient's education program or activity. While the Department
believes that the Sec. 106.45 grievance process provides an
appropriately fair framework for many types of school disciplinary
matters, the Department is authorized to prescribe Sec. 106.45 for
resolution of formal complaints of Title IX sexual harassment because
consistent processes reaching reliable factual determinations are
needed in order to provide remedies to sexual harassment victims (to
further Title IX's purpose) and because Title IX sexual harassment
allegations inherently invite intentional or unintentional application
of sex-based assumptions, generalizations, and stereotypes (which
violate Title IX's non-discrimination mandate).
The Department declines to apply the Sec. 106.45 grievance process
only to formal complaints alleging sexual assault, involving
allegations of violence, or otherwise subjecting a respondent to
expulsion. As discussed under Sec. 106.44(a) and Sec. 106.30, the
Department has defined sexual harassment to include three categories of
misconduct on the basis of sex (quid pro quo harassment by an employee;
severe, pervasive, and objectively offensive unwelcome conduct; and
sexual assault, dating violence, domestic violence, or stalking as
defined under the Clery Act and VAWA). Each of these categories of
misconduct is a serious violation that jeopardizes a victim's equal
access to education. Formal complaints alleging any type of sexual
harassment, as defined in Sec. 106.30, must be handled under a process
designed to reliably determine the facts surrounding each allegation so
that recipients provide remedies to victims subjected to that serious
misconduct. The final regulations do not prescribe any particular form
of disciplinary sanction for sexual harassment. Therefore, the
Department declines to apply Sec. 106.45 only when a respondent faces
expulsion; rather, Sec. 106.45 applies to formal complaints alleging
Title IX sexual harassment regardless of what potential discipline a
recipient may impose on a respondent who is found responsible.
In response to commenters concerned that the term ``due process''
or ``due process protections'' needlessly confuses whether the
Department is referring to a fair process that applies equally to both
public and private institutions, or constitutional due process that
only public institutions are required to provide, the final regulations
use the phrase ``grievance process that complies with Sec. 106.45''
instead of ``due process'' or ``due process protections.'' \474\ In
this way, the Department clarifies that all recipients must, where
indicated, apply the Sec. 106.45 grievance process, which requires
procedures the Department believes draw from principles of due process
but remain distinct from constitutional due process owed by public
institutions.
---------------------------------------------------------------------------
\474\ E.g., Sec. 106.8(c); Sec. 106.44(a); Sec.
106.45(b)(1)(i).
---------------------------------------------------------------------------
Changes: The final regulations use the phrase ``grievance process
that complies with Sec. 106.45'' instead of ``due process'' or ``due
process protections.''
Comments: A few commenters noted that existing Title IX regulations
provide
[[Page 30102]]
for prompt and equitable grievance procedures to resolve complaints of
sex discrimination, and argued that existing regulations and the 2001
Guidance advising that an equitable grievance procedure means ensuring
adequate, reliable, and impartial investigations of complaints, have
long provided adequate due process protections for all parties, and
thus the more detailed procedural requirements in Sec. 106.45 are
unnecessary and only serve to protect respondents at the expense of
complainants. A few commenters pointed out that at least two of the
Department's Title IX enforcement actions in 2015 and 2016 concluded
under then-applicable guidance that university complaint resolution
processes were inequitable for complainants, respondents, or both.
These commenters argued that this shows that the Department's guidance
has sufficiently protected each party's right to a fair process.
Discussion: As discussed in the ``Role of Due Process in the
Grievance Process'' section of this preamble, the Department in its
guidance has interpreted the regulatory requirement for recipients to
adopt equitable grievance procedures to mean such procedures must
ensure adequate, reliable, and impartial investigations of complaints.
While the Department still believes that adequate, reliable, and
impartial investigation of complaints is necessary for the handling of
sexual harassment complaints under Title IX, setting forth that
interpretation of equitable grievance procedures in guidance lacks the
force and effect of law. Furthermore, the Department does not believe
that codifying the ``adequate, reliable, and impartial investigation of
complaints'' standard into the final regulations would sufficiently
promote consistency and reliability because such a conclusory standard
does not helpfully interpret for recipients what procedures rooted in
principles of due process are needed to achieve fairness and factual
reliability in the context of Title IX sexual harassment allegations.
To the extent that the Department has in the past used enforcement
actions to identify particular ways in which a recipient's grievance
process failed to ensure ``adequate, reliable, and impartial
investigations,'' the enforcement actions and resulting letters of
finding and resolution agreements apply only to the particular
recipient under investigation and do not substitute for the
transparency of regulations that specify the actions required of all
recipients. Through these final regulations, we seek to provide with
more certainty that recipients' investigations will be held to
consistent standards of adequacy, reliability, and impartiality.
Changes: None.
Comments: One commenter characterized the requirements of Sec.
106.45 as elaborate and multitudinous, predicted that many recipients
will fail to comply with every requirement, and asked the Department to
answer (i) whether the Department will find a recipient in violation of
Sec. 106.45 only if the recipient violated a provision with deliberate
indifference? (ii) Will the Department require parties to preserve
objections based on a recipient's failure to follow Sec. 106.45 by
raising the objection before the decision-maker and on appeal? (iii)
Will any violation of Sec. 106.45 result in the Department requiring
the recipient to set aside its determination regarding responsibility
and hold a new hearing, or only if the violation of Sec. 106.45
affected the outcome?
Discussion: In response to the commenter's questions, the
Department will enforce Sec. 106.45 by holding recipients responsible
for compliance regardless of any intent on the part of the recipient to
violate Sec. 106.45. The Department notes that under existing
regulations and OCR enforcement practice, the Department does not
pursue termination of Federal financial assistance unless a recipient
refuses to correct a violation after the Department has notified the
recipient of the violation. The Department will not impose on parties a
requirement to preserve objections based on a recipient's failure to
comply with Sec. 106.45, because the recipient's obligation to comply
exists whether or not the recipient is informed of the violation by a
party. The corrective action a recipient must take after the Department
identifies violations of statutory or regulatory requirements depends
on the facts of each particular enforcement action, and the Department
cannot predict every circumstance that may present itself in the future
and, thus, declines to state under which circumstances a Sec. 106.45
violation may require a recipient to set aside a determination
regarding responsibility.
Changes: None.
Comments: Many commenters believe that due process protections
unfairly favor respondents over complainants, and expressed concern
that the proposed rules will cause sexual harassment victims to suffer
additional trauma because investigations will be biased against
complainants, will favor harassers over victims, and retraumatize
survivors of sexual violence. A few commenters shared personal stories
of feeling deterred from filing a sexual assault complaint because the
legal process, including the Title IX campus process, would be
harrowing or intimidating. Some commenters asserted that because
complainants are disproportionately female, due process that benefits
respondents constitutes sex discrimination against women.
Some commenters asserted that treating complainants and respondents
equally is insufficient to address the reality that sexual violence is
prevalent throughout American society and because women historically
have faced biased responses when women report being victims of sexual
violence, equity under Title IX requires procedures that favor
complainants. At least one commenter asserted that Title IX exists to
address systemic gender inequality in education and was not enacted
from a place of neutrality. A few commenters asserted that because rape
victims often face blame and disbelief when they try to report being
raped, and only approximately five in every 1,000 perpetrators of rape
will face criminal conviction,\475\ the system is already tilted in
favor of perpetrators and Title IX needs to provide complainants with
more protections than respondents.
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\475\ Commenters cited: Rape, Abuse & Incest National Network
(RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/statistics/campus-sexual-violence.
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Several commenters asserted that because studies have shown the
rate of false reports of sexual assault to be low and because rates of
sexual assault are high, Title IX must offer protections to
complainants rather than seek to protect rights of respondents. Other
commenters asserted that the rate of false or unfounded accusations of
sexual misconduct may be higher than ten percent, and others disputed
that the prevalence of campus sexual assault is as high as 20 percent.
Other commenters argued that relatively few respondents found
responsible for sexual misconduct are actually expelled,\476\ showing
that the scales are not tipped in favor of complainants because even
when found responsible, perpetrators are not receiving harsh sanctions.
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\476\ Commenters cited: Kristen Lombardi, A Lack of Consequences
for Sexual Assault, The Center for Public Integrity (Feb. 24, 2010)
(noting that up to 25 percent of respondents are expelled); Nick
Anderson, Colleges often reluctant to expel for sexual violence, The
Washington Post (Dec. 15, 2014) (noting that only 12 percent of
sanctions against respondents were expulsions).
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Commenters asserted that a regulation concerned with avoiding
violations of respondents' due process rights ignores the way
complainants are still being pushed out of school due to inadequate,
[[Page 30103]]
unfair responses to their reports of sexual harassment. Several
commenters described retaliatory, punitive school and college responses
to girls and women who reported suffering sexual harassment. At least
one commenter asserted that while data show that boys of color are not
disciplined in elementary and secondary schools for sexual harassment
at rates much higher than white boys, data show that girls of color not
only suffer sexual harassment at higher rates than white girls, but
also are more likely to have their reports of sexual harassment ignored
or be blamed or punished for reporting.
Discussion: The Department disagrees that due process protections
generally, and the procedures drawn from due process principles in
Sec. 106.45 particularly, unfairly favor respondents over complainants
or sexual harassment perpetrators over victims, or that Sec. 106.45 is
biased against complainants, victims, or women. Section 106.45(a)
states that a recipient's treatment of a complainant, or a respondent,
may constitute sex discrimination prohibited by Title IX. Section
106.45(b)(1)(iii) requires Title IX Coordinators, investigators,
decision-makers, and individuals who facilitate any informal resolution
process to be free of bias or conflicts of interest for or against
complainants or respondents and to be trained on how to serve
impartially. Section 106.45(b)(1)(ii) precludes credibility
determinations based on a person's status as a complainant, respondent,
or witness. With the exceptions noted below, the other provisions of
Sec. 106.45 also apply equally to both parties. The exceptions are
three provisions that distinguish between complainants and respondents;
each exception results from the need to take into account the party's
position as a complainant or respondent specifically in the context of
Title IX sexual harassment, to reasonably promote truth-seeking in a
grievance process particular to sexual harassment allegations. Thus,
Sec. 106.45(b)(1)(i) requires recipients to treat complainants and
respondents equitably by providing remedies for a complainant where a
respondent has been found responsible, and by imposing disciplinary
sanctions on a respondent only after following a Sec. 106.45 grievance
process; because remedies concern a complainant and disciplinary
sanctions concern a respondent, this provision requires equitable
treatment rather than strictly equal treatment. Section
106.45(b)(1)(iv) requires recipients to presume the respondent is not
responsible until conclusion of the grievance process, because such a
presumption reinforces that the burden of proof remains on recipients
(not on the respondent, or the complainant) and reinforces correct
application of the standard of evidence. Section 106.45(b)(6)(i)-(ii)
protects complainants (but not respondents) from questions or evidence
about the complainant's prior sexual behavior or sexual predisposition,
mirroring rape shield protections applied in Federal courts. The Sec.
106.45 grievance process, therefore, treats complainants and
respondents equally in nearly every regard, with three exceptions (one
imposing equitable treatment for both parties, one applicable only to
respondents, and one applicable only to complainants). The Department
disagrees with commenters who argued that any provision conferring a
right or protection only to respondents treats complainants inequitably
or constitutes sex discrimination against women. The sole provision
that applies only to respondents (Sec. 106.45(b)(1)(iv)) does not
treat complainants inequitably because the provision helps ensure that
the burden of proof remains on the recipient, not on the complainant
(or respondent), and the presumption serves to reinforce correct
application of whichever standard of evidence the recipient has
selected. The Department also notes that any person regardless of sex
may be a complainant or a respondent, and, thus, provisions that treat
complainants and respondents equitably based on party status or apply
only to complainants or only to respondents for the purpose of
fostering truth-seeking, do not discriminate based on sex but rather
distinguish interests unique to a person's party status.
The Department is sensitive to the concerns from commenters that
the experience of a grievance process may indeed feel traumatizing or
intimidating to complainants,\477\ yet the facts surrounding sexual
harassment incidents must be reliably determined in order to provide
remedies to a victim. In deference to the autonomy of each complainant
to decide whether to participate in a grievance process, the final
regulations require recipients to offer supportive measures to each
complainant whether or not the complainant files a formal complaint or
otherwise participates in a grievance process.\478\
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\477\ The Department does not equate the trauma experienced by a
sexual harassment victim with the experience of a perpetrator of
sexual harassment or the experience of a person accused of sexual
harassment. Nonetheless, the Department acknowledges that a
grievance process may be difficult and stressful for both parties.
Further, supportive measures may be offered to complainants and
respondents (see Sec. 106.30 defining ``supportive measures''), and
Sec. 106.45(b)(5)(iv) requires recipients to provide both parties
the same opportunity to select an advisor of the party's choice.
These provisions recognize that the stress of participating in a
grievance process affects both complainants and respondents and may
necessitate support and assistance for both parties.
\478\ Section 106.44(a); Sec. 106.30 (defining ``supportive
measures'').
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The Department disagrees that the historical or general societal
bias against women or against victims of sexual harassment requires or
justifies a grievance process designed to favor women or complainants.
Title IX protects every ``person'' (20 U.S.C. 1681) without regard for
the person's sex or status as a complainant or respondent; the
statute's use of the word ``person'' and not ``female'' or ``woman''
indicates that contrary to a commenter's assertion otherwise, Title IX
was designed to operate neutrally with respect to the sex of persons
protected by the non-discrimination mandate.
Whether or not commenters correctly describe the criminal justice
system as ``tilted in favor of perpetrators'' demonstrated by data
showing that only five in every 1,000 perpetrators of rape face
criminal conviction, the grievance process under Title IX protects
against, and through enforcement the Department will not tolerate,
blaming or shaming women or any person pursuing a formal complaint of
sexual harassment. Section 106.45 is premised on the principle that an
accurate resolution of each allegation of sexual harassment requires
objective evaluation of all relevant evidence without bias and without
prejudgment of the facts. Under Sec. 106.45, neither complainants nor
respondents are automatically or prematurely believed or disbelieved,
until and unless credibility determinations are made as part of the
grievance process.\479\ Implementation of the Sec. 106.45 grievance
process will increase the likelihood that whatever biases and
prejudices exist in criminal justice systems will not affect Title IX
grievance processes because Title IX Coordinators, investigators,
decision-makers and any person who facilitates an informal resolution
process must receive training on how to serve impartially, including by
avoiding prejudgment of the facts at issue,
[[Page 30104]]
conflicts of interest, and bias under Sec. 106.45(b)(1)(iii).
Additionally, either party may file an appeal on the ground that the
Title IX Coordinator, investigator, or decision-maker had a conflict of
interest or bias for or against complainants or respondents generally,
or the individual complainant or respondent, that affected the outcome
of the matter, under Sec. 106.45(b)(8). Accordingly, proceedings to
investigate and adjudicate a formal complaint of sexual harassment
under these final regulations are designed to reach accurate
determinations regarding responsibility so that students and employees
are protected from sex discrimination in the form of sexual harassment.
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\479\ Contrary to many commenters' assertions, the presumption
of non-responsibility does not permit (much less require) recipients
automatically or prematurely to ``believe respondents'' or
``disbelieve complainants.'' See discussion in the ``Section
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of
the ``General Requirements for Sec. 106.45 Grievance Process''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble.
---------------------------------------------------------------------------
The Department believes that Sec. 106.45 serves the purposes of
Title IX by focusing on accurate factual determinations regardless of
whether the rate of campus sexual assault, and the rate of false or
unfounded accusations, is as high as some commenters stated or as low
as other commenters stated. Every complainant and every respondent
deserve an impartial, truth-seeking process to resolve the allegations
in each particular situation, regardless of the frequency or
infrequency of victimization and false accusations. Similarly, every
allegation warrants an accurate factual resolution regardless of how
many recipients decide that expulsion is the appropriate sanction
against respondents found responsible for sexual harassment. No matter
what decision a recipient makes with respect to disciplinary sanctions,
Title IX requires recipients to provide victims with remedies designed
to restore or preserve the victim's access to education, and that
obligation can be met only after a reliable determination regarding
responsibility.
In response to commenters' concerns that girls and women who report
sexual harassment are sometimes ignored or retaliated against by their
school, the Department does not believe that such wrongful acts and
omissions by recipients justify a grievance process that favors
complainants over respondents. The final regulations require recipients
to respond promptly to every report of sexual harassment (of which the
recipient has actual knowledge, and that occurs in the recipient's
education program or activity, against a person in the United States)
in a non-deliberately indifferent manner, and, thus, any recipient
ignoring a complainant's report of sexual harassment would violate the
final regulations, and the Department will vigorously enforce
recipients' obligations.
In response to many commenters concerned about retaliation, the
final regulations include Sec. 106.71 stating retaliation against any
individual making a report, filing a complaint, or participating in a
Title IX investigation or proceeding is prohibited. Whether or not the
commenter correctly asserted that boys of color are not punished for
sexual harassment at much higher rates than white boys but that girls
of color are ignored and retaliated against at rates higher than white
girls, the protections extended to complainants and respondents under
the final regulations apply without bias against an individual's sex,
race, ethnicity, or other characteristic of the complainant or
respondent.
Changes: Section 106.71 prohibits retaliation against any
individual making a report, filing a complaint, or participating in a
Title IX investigation or proceeding.
Comments: Some commenters suggested that the Department should
proactively intervene and monitor the recipient's disciplinary
practices to ensure they are fair, proportionate, and not
discriminatory. Some commenters wanted Sec. 106.45 to specifically
address topics such as the quality of the information gathered during
the investigation, the candid participation of parties and witnesses,
and the skills and experience (as well as the content of training) of
Title IX Coordinators, investigators, and decision-makers, arguing that
Sec. 106.45 leaves too much discretion to recipients to devise their
own strategies and approaches for the grievance process that may run
contrary to improving the reliability of outcomes for the parties.
Some commenters proposed adding a provision clarifying that nothing
in these regulations shall be interpreted to prevent the accused
student from choosing to have their case adjudicated in an
administrative law setting, provided that the institution advises the
accused student in writing that it is the accused student's sole choice
as to whether to have their case decided under those procedures or
those offered on campus.
Some commenters proposed that a case should not be adjudicated
unless there is quantifiable evidence to determine reasonable cause and
suggested forming a compliance team to review the complaint and
response from the accused to assess the validity of the accusation.
Other commenters asserted that recipients have limited resources and
should triage cases with priority based on severity of the conduct
alleged. One commenter requested a requirement that attorneys working
on these tribunals must have passed the State bar exam of the
university's host State(s) and be a current member of the bar. Some
commenters expressed concern about the power imbalance between students
and professors, asserting that this power imbalance is already a
deterrent to reporting an incident. Some postsecondary institutions
commented that their institution already follows most of the procedures
in Sec. 106.45. Several commenters supported adopting the grievance
procedures already in use by specific institutions, published by
advocacy organizations, or under Federal laws applicable to Native
American Institutions.
Discussion: The Department understands commenters' requests for
intervention in and monitoring of the fairness, proportionality, and
prevention of any discrimination in disciplinary sanctions that
recipients impose at the conclusion of a Sec. 106.45 grievance
process. The grievance process for Title IX sexual harassment is
intended and designed to ensure that recipients reach reliable outcomes
and provide remedies to victims of sexual harassment. The Department
does not prescribe whether disciplinary sanctions must be imposed, nor
restrict recipient's discretion in that regard. As the Supreme Court
noted, Federal courts should not second guess schools' disciplinary
decisions,\480\ and the Department likewise believes that disciplinary
decisions are best left to the sound discretion of recipients. The
Department believes that a standardized framework for resolution of
Title IX sexual harassment allegations provides needed consistency in
how recipients reach reliable outcomes. The Department's authority to
effectuate the purposes of Title IX justifies the Department's concern
for reaching reliable outcomes, so that sexual harassment victims
receive appropriate remedies, but the Department does not believe that
prescribing Federal rules about disciplinary decisions is necessary in
order to further Title IX's non-discrimination mandate. The Department
notes that while Title IX does not give the Department a basis to
impose a Federal standard of fairness or proportionality onto
disciplinary decisions, Title IX does, of course, require that actions
taken by a recipient must not constitute sex discrimination; Title IX's
non-discrimination mandate applies as much to a recipient's
disciplinary actions as to any other action taken by a recipient with
respect to its education programs or activities.
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\480\ Davis, 526 U.S. at 648-49.
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[[Page 30105]]
The Department understands that some commenters would like the
Department to issue more specific requirements to address topics such
as the quality of information or evidence gathered during
investigation, the candid participation of parties and witnesses, and
the skills, experience, and type of training, of Title IX Coordinators,
investigators, and decision-makers. We believe, however, that Sec.
106.45 strikes an appropriate balance between prescribing procedures
specific enough to result in a standardized Title IX sexual harassment
grievance process that promotes impartiality and avoidance of bias,
while leaving flexibility for recipients to make reasonable decisions
about how to implement a Sec. 106.45-compliant grievance process. For
example, while Sec. 106.45 does not set parameters around the
``quality'' of evidence that can be relied on, Sec. 106.45 does
prescribe that all relevant evidence, inculpatory and exculpatory,
whether obtained by the recipient from a party or from another source,
must be objectively evaluated by investigators and decision-makers free
from conflicts of interest or bias and who have been trained in (among
other matters) how to serve impartially.
The Department appreciates the commenters' request that the
Department provide for alternatives to a Sec. 106.45 grievance process
including, for example, adjudication in a State administrative law
setting. The Department has tailored the Sec. 106.45 grievance process
to provide the procedures and protections we have determined are most
needed to promote reliable outcomes resolving Title IX sexual
harassment allegations in the context of education programs or
activities that receive Federal financial assistance. While the
Department does not dispute that other administrative proceedings could
provide similarly reliable outcomes, for purposes of enforcing Title
IX, a Federal civil rights statute, Sec. 106.45 provides a
standardized framework. The Department notes that nothing in the final
regulations precludes a recipient from carrying out its
responsibilities under Sec. 106.45 by outsourcing such
responsibilities to professionally trained investigators and
adjudicators outside the recipient's own operations. The Department
declines to impose a requirement that Title IX Coordinators,
investigators, or decision-makers be licensed attorneys (or otherwise
to specify the qualifications or experience needed for a recipient to
fill such positions), because leaving recipients as much flexibility as
possible to fulfill the obligations that must be performed by such
individuals will make it more likely that all recipients reasonably can
meet their Title IX responsibilities.
The Department declines to add a reasonable cause threshold into
Sec. 106.45. The very purpose of the Sec. 106.45 grievance process is
to ensure that accurate determinations regarding responsibility are
reached, impartially and based on objective evaluation of relevant
evidence; the Department believes that goal could be impeded if a
recipient's administrators were to pass judgment on the sufficiency of
evidence to decide if reasonable or probable cause justifies completing
an investigation. In response to commenters' concerns that the proposed
rules did not permit reasonable discretion to dismiss allegations where
an adjudication seemed futile, the final regulations add Sec.
106.45(b)(3)(ii), allowing the recipient, in its discretion, to dismiss
a formal complaint, if the complainant notifies the Title IX
Coordinator in writing that the complainant wishes to withdraw it, if
the respondent is no longer enrolled or employed by the recipient, or
if specific circumstances prevent the recipient from collecting
evidence sufficient to reach a determination (for example, where the
complainant has ceased participating in the process). The Department
rejects the notion that Title IX sexual harassment cases can or should
be ``triaged'' or treated differently based on a purported effort to
distinguish them based on severity. The Department has defined Title IX
sexual harassment as any of three categories of sex-based conduct each
of which constitutes serious behavior likely to effectively deny a
victim equal access to education, and thus any type of sexual
harassment as defined in Sec. 106.30 warrants the Sec. 106.45
grievance process.
The Department appreciates that some commenters on behalf of
certain postsecondary institutions believed that their institution's
policies already embody most or many of the requirements of Sec.
106.45. The Department has reviewed and considered the grievance
procedures utilized in the codes of conduct in use by many different
recipients, as well as the recommended fair procedures set forth by
advocacy organizations, and the Federal laws applicable to Native
American Institutions with respect to student misconduct proceedings,
as referenced by commenters. While the Department declines to adopt
wholesale the procedures used or recommended by any particular
institution or organization, the Department notes that Sec. 106.45
contains provisions that some commenters, including submissions on
behalf of institutions and organizations, described or recommended in
their comments.
Changes: Section 106.45(b)(3)(ii) allows the recipient, in its
discretion, to dismiss a formal complaint if the complainant notifies
the Title IX Coordinator in writing that the complainant wishes to
withdraw it, if the respondent is no longer enrolled or employed by the
recipient, or if specific circumstances prevent the recipient from
gathering evidence sufficient to reach a determination.
Section 106.30 Definitions \481\
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\481\ The NPRM proposed that the definitions in Sec. 106.30
apply only to Subpart D, Part 106 of Title 34 of the Code of Federal
Regulations. 83 FR 61496. Aside from the words ``elementary and
secondary school'' and ``postsecondary institution,'' the words that
are defined in Sec. 106.30 do not appear elsewhere in Part 106 of
Title 34 of the Code of Federal Regulations. Upon further
consideration and for the reasons articulated in this preamble,
including in the ``Section 106.6(f) Title VII and Directed Question
3 (Application to Employees)'' subsection of the ``Clarifying
Amendments to Existing Regulations'' section of this preamble, the
Department believes that the definitions in Sec. 106.30 should
apply to Part 106 of Title 34 of the Code of Federal Regulations,
except for the definitions of the words ``elementary and secondary
school'' and ``postsecondary institution.'' The definitions of
``elementary and secondary school'' and ``postsecondary
institution'' in Sec. 106.30 will apply only to Sec. Sec. 106.44
and 106.45. This revision is not a substantive revision because this
revision does not change the definitions or meaning of existing
words in Part 106 of Title 34 of the Code of Federal Regulations.
Ensuring that the definitions in Sec. 106.30 apply throughout Part
106 of Title 34 of the Code of Federal Regulations will provide
clarity and consistency for future application. We also have
clarified in Sec. 106.81 that the definitions in Sec. 106.30 do
not apply to 34 CFR 100.6-100.11 and 34 CFR part 101, which are
procedural provisions applicable to Title VI. Section 106.81
incorporates these procedural provisions by reference into Part 106
of Title 34 of the Code of Federal Regulations.
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Actual Knowledge
Support for Actual Knowledge Requirement and General Safety Concerns
Comments: Several commenters who supported the definition of actual
knowledge in Sec. 106.30 and the actual knowledge requirement in Sec.
106.44(a) stated that using an actual knowledge requirement empowers
victims of sexual harassment to choose when and to whom to report
sexual misconduct, which commenters believed would help facilitate
building more trusting relationships between students and school
administrators. Multiple commenters also supported the way that the
proposed regulations allow recipients to design internal reporting
processes as recipients see fit, including mandatory reporting by all
employees to the Title IX Coordinator or others with
[[Page 30106]]
the authority to institute corrective measures on the recipient's
behalf. One commenter cited the Supreme Court's Davis decision and
stated that, while the commenter supported the Department's actual
knowledge requirement, institutions should publicize a list of the
officials who have authority to institute corrective measures, in a
location easily accessible and known to the student body, so that those
who wish to file complaints know how to do so.
Some commenters referred to the constructive notice standard set
forth in Department guidance as a ``mandatory reporting'' system. Some
commenters supported replacing constructive notice with actual
knowledge, arguing that the mandatory reporting system recommended by
Department guidance has resulted in requiring college and university
employees to report allegations of sexual harassment and sexual
violence even when a victim reported to an employee in confidence and
even when the victim expressed no interest in an investigation.
Other commenters objected to the Department removing ``mandatory
reporter'' requirements and replacing constructive notice with actual
knowledge. Several commenters asserted that the actual knowledge
definition in Sec. 106.30 and actual knowledge requirement in Sec.
106.44(a) will harm survivors, especially women, by allowing ``lower
level employees'' to intentionally bury reports of sexual harassment
against serial perpetrators. Those commenters expressed concern that
Title IX Coordinators will be less informed, which will make campuses
more dangerous for students.
Several commenters asserted that survivors of campus assault have
frequently experienced Title IX personnel being more concerned with
protecting the recipient's institutional interests than with the
welfare of victims. Commenters who work in postsecondary institutions,
or for corporations, asserted that they are familiar with this dynamic
in the context of human resources departments. Many commenters stated
that the longstanding constructive notice standard (requiring a school
to respond if a responsible employee knew or should have known of
sexual harassment) was sufficient to ensure that employees would be
held accountable for purposefully turning their backs on students who
seek to report sexual harassment. Commenters asserted that employees at
a particular university failed to take any action after students
disclosed another employee's abuse to them, which resulted in a serial
sexual perpetrator victimizing many people. Commenters expressed
concern that the actual knowledge requirement requires the Department
to be too trusting of recipients, and cited incidents of coaches and
employees mishandling reports of sexual harassment at a number of
institutions of higher education.
Discussion: The Department appreciates commenters' support for the
Sec. 106.30 definition of ``actual knowledge'' and the requirement in
Sec. 106.44(a) that recipients respond to sexual harassment when the
recipient has actual knowledge. As explained in the ``Actual
Knowledge'' subsection of the ``Adoption and Adaption of the Supreme
Court's Framework to Address Sexual Harassment'' we have revised the
Sec. 106.30 definition of ``actual knowledge'' to differentiate
between elementary and secondary schools, and postsecondary
institutions, with respect to which school or college employees who
have ``notice'' of sexual harassment require the school or college to
respond. Under revised Sec. 106.30, notice to ``any employee'' of an
elementary or secondary school charges the recipient with actual
knowledge.
The Department disagrees with commenters that the actual knowledge
requirement, as adopted from the Gebser/Davis framework and adapted in
these final regulations for administrative enforcement, will result in
recipients being less informed about, or less responsive to, patterns
of sexual harassment and threats to students. With respect to
postsecondary institutions, notice of sexual harassment or allegations
of sexual harassment to the recipient's Title IX Coordinator or to an
official with authority to institute corrective measures on behalf of
the recipient (herein, ``officials with authority'') will trigger the
recipient's obligation to respond. Postsecondary institution students
have a clear channel through the Title IX Coordinator to report sexual
harassment, and Sec. 106.8(a) requires recipients to notify all
students and employees (and others) of the Title IX Coordinator's
contact information, so that ``any person'' may report sexual
harassment in person, by mail, telephone, or email (or by any other
means that results in the Title IX Coordinator receiving the person's
verbal or written report), and specifies that a report may be made at
any time (including during non-business hours) by mail to the Title IX
Coordinator's office address or by using the listed telephone number or
email address. In the postsecondary institution context, the Department
believes that making sure that complainants and third parties have
clear, accessible ways to report to the Title IX Coordinator rather
than requiring the recipient to respond each time any postsecondary
institution employee has notice, better respects the autonomy of
postsecondary school students (and employees) to choose whether and
when to report sexual harassment.\482\
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\482\ The Department recognizes the many examples pointed to by
commenters, of postsecondary institutions failing to respond
appropriately to notice of sexual harassment allegations when at
least some university employees knew of the alleged sexual
harassment, resulting in some situations where serial predators
victimized many people. We note that such failures by institutions
occurred under the status quo; that is, under the Department's
approach to notice in the Department's guidance. In these final
regulations, the Department aims to respect the autonomy of students
at postsecondary institutions, while ensuring that such students
(and employees) clearly understand how to report sexual harassment.
We believe that the best way to avoid reports ``falling through the
cracks'' or successfully being ``swept under the rug'' by
postsecondary institutions, is not to continue (as Department
guidance did) to insist that all postsecondary institutions must
have universal or near-universal mandatory reporting. As discussed
in the ``Actual Knowledge'' subsection of the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section of this preamble, whether universal mandatory
reporting for postsecondary institutions benefits victims or harms
victims is a complicated issue as to which research is conflicting.
We believe that allowing each postsecondary institution to implement
its own policy regarding which employees must report sexual
harassment to the Title IX Coordinator (and which may remain
confidential resources for students at postsecondary institutions)
is a better approach than requiring universal mandatory reporting.
The benefits of universal mandatory reporting policies may not
outweigh the negative impact of such policies, in terms of helping
victims. Allowing postsecondary institutions to choose for
themselves what kind of mandatory reporting policies to have is only
beneficial if combined (as in these final regulations) with strong
requirements that every postsecondary institution inform students
and employees about how to report to the Title IX Coordinator and
that every institution has in place accessible options for any
person to report to the Title IX Coordinator. This is the approach
taken in these final regulations, so that, for example, if an
alleged victim discloses sexual harassment to a university ``low-
level'' employee and the school does not respond by reaching out to
the alleged victim (called ``the complainant'' in these final
regulations) then the alleged victim also knows how to contact the
Title IX Coordinator, a specially trained employee who must respond
promptly to the alleged victim by offering supportive measures and
confidentially discussing with the alleged victim the option of
filing a formal complaint. A report to the Title IX Coordinator may
also be made by any third party, such as the alleged victim's parent
or friend. Thus, whether or not the ``low level'' employee to whom
an alleged victim disclosed sexual harassment appropriately kept
that disclosure confidential, or wrongfully violated the
institution's mandatory reporting policy, the alleged victim is not
left without recourse or options and the institution is not able to
avoid responding to the alleged victim, because the alleged victim
knows that any report made to the Title IX Coordinator, via any of
several accessible options (e.g., email or phone, which information
must be prominently displayed on recipients' websites) that can be
used day or night, will trigger the institution's prompt response
obligations. Sec. 106.8; Sec. 106.30 (defining ``actual
knowledge'' to include, but not be limited to, a report to the Title
IX Coordinator).
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[[Page 30107]]
With respect to elementary and secondary schools, the Department is
persuaded by commenters' concerns that it is not reasonable to expect
young students to report to specific school employees or to distinguish
between a desire to disclose sexual harassment confidentially to a
school employee, versus a desire to report sexual harassment for the
purpose of triggering the school's response obligations. We have
revised the Sec. 106.30 definition of actual knowledge to specifically
state that notice to any employee of an elementary or secondary school
charges the recipient with actual knowledge, triggering the recipient's
obligation to respond to sexual harassment (including promptly offering
supportive measures to the complainant). Accordingly, students in
elementary and secondary schools do not need to report allegations of
sexual harassment to a specific employee such as a Title IX Coordinator
to trigger a recipient's obligation to respond to such allegations. A
student in an elementary or secondary school may report sexual
harassment to any employee. Similarly, if an employee of an elementary
or secondary school personally observes sexual harassment,\483\ then
the elementary or secondary school recipient must respond to and
address the sexual harassment in accordance with these final
regulations. As previously noted in the ``Adoption and Adaption of the
Supreme Court's Framework to Address Sexual Harassment,'' elementary
and secondary schools operate under the doctrine of in loco parentis,
and employees at elementary and secondary schools typically are
mandatory reporters of child abuse under State laws for purposes of
child protective services.\484\ In addition to any obligations imposed
on school employees under State child abuse laws, these final
regulations require the recipient to respond to allegations of sexual
harassment by offering supporting measures to any person alleged to be
the victim of sexual harassment and taking the other actions required
under Sec. 106.44(a).
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\483\ Section 106.30 defines ``complainant'' to mean ``an
individual who is alleged to be the victim of conduct that could
constitute sexual harassment'' and therefore, an employee witnessing
or hearing about conduct that ``could constitute'' sexual harassment
defined in Sec. 106.30 triggers the elementary and secondary school
recipient's response obligations, including having the Title IX
Coordinator contact the complainant (and, where appropriate, the
complainant's parent or legal guardian) to confidentially discuss
the availability of supportive measures. Section 106.44(a). In other
words, if an elementary or secondary school employee witnesses
conduct but does not know ``on the spot'' whether the conduct meets
the Sec. 106.30 definition of sexual harassment (for example,
because the employee cannot discern whether the conduct amounted to
a sexual assault, or whether the conduct was ``unwelcome''
subjectively to the complainant, or whether non-quid pro quo, non-
sexual assault conduct was ``severe''), the person victimized by the
conduct is a ``complainant'' entitled to the school's prompt
response if the conduct ``could'' constitute sexual harassment.
\484\ See Ala. Code Sec. 26-14-3; Alaska Stat. Sec. 47.17.020;
Ariz. Rev. Stat. Sec. 13-3620; Ark. Code Ann. Sec. 12-18-402; Cal.
Penal Code Sec. 11165.7; Colo. Rev. Stat. Sec. 19-3-304; Conn.
Gen. Stat. Sec. 17a-101; Del. Code Ann. tit. 16, Sec. 903; DC Code
Sec. 4-1321.02; Fla. Stat. Sec. 39.201; Ga. Code Ann. Sec. 19-7-
5; Haw. Rev. Stat. Sec. 350-1.1; Idaho Code Ann. Sec. 16-1605; 325
Ill. Comp. Stat. Sec. 5/4; Ind. Code Sec. 31-33-5-1; Iowa Code
Sec. 232.69; Kan. Stat. Ann. Sec. 38-2223; Ky. Rev. Stat. Ann.
Sec. 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit.
22, Sec. 4011-A; Md. Code Ann., Fam. Law Sec. 5-704; Mass. Gen.
Laws ch. 119, Sec. 21; Mich. Comp. Laws Sec. 722.623; Minn. Stat.
Sec. 626.556; Miss. Code. Ann. Sec. 43-21-353; Mo. Ann Stat. Sec.
210.115; Mont. Code Ann. Sec. 41-3-201; Neb. Rev. Stat. Sec. 28-
711; Nev. Rev. Stat. Sec. 432B.220; N.H. Rev. Stat. Ann. Sec. 169-
C:29; N.J. Stat. Ann. Sec. 9:6-8.10; N.M. Stat. Ann. Sec. 32A-4-3;
N.Y. Soc. Serv. Law Sec. 413; N.C. Gen. Stat. Ann. Sec. 7B-301;
N.D. Cent. Code Ann. Sec. 50-25.1-03; Ohio Rev. Code Ann. Sec.
2151.421; Okla. Stat. tit. 10A, Sec. 1-2-101; Or. Rev. Stat. Sec.
419B.010; 23 Pa. Cons. Stat. Ann Sec. 6311; R.I. Gen. Laws Sec.
40-11-3(a); S.C. Code Ann. Sec. 63-7-310; S.D. Codified Laws Sec.
26-8A-3; Tenn. Code Ann. Sec. 37-1-403; Tex. Fam. Code Sec.
261.101; Utah Code Ann. Sec. 62A-4a-403; Vt. Stat. Ann. tit. 33,
Sec. 4913; Va. Code Ann. Sec. 63.2-1509; Wash. Rev. Code Sec.
26.44.030; W. Va. Code Sec. 49-2-803; Wis. Stat. Sec. 48.981; Wyo.
Stat. Ann. Sec. 14-3-205.
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The Department agrees with commenters who noted that nothing in the
proposed or final regulations prevents recipients (including
postsecondary institutions) from instituting their own policies to
require professors, instructors, or all employees to report to the
Title IX Coordinator every incident and report of sexual harassment. A
recipient also may empower as many officials as it wishes with the
requisite authority to institute corrective measures on the recipient's
behalf, and notice to these officials with authority constitutes the
recipient's actual knowledge and triggers the recipient's response
obligations. Recipients may also publicize lists of officials with
authority. We have revised Sec. 106.8 to require recipients to notify
students, employees, and parents of elementary and secondary school
students (among others) of the contact information for the recipient's
Title IX Coordinator, to specify that any person may report sexual
harassment in person, by mail, telephone, or email using the Title IX
Coordinator's contact information (or by any other means that results
in the Title IX Coordinator receiving the person's verbal or written
report), to state that reports may be made at any time (including
during non-business hours) by using the listed telephone number or
email address, and to require a recipient to post the Title IX
Coordinator's contact information on the recipient's website.
The Department appreciates commenters' concerns about recipients
purposely ignoring reports of sexual harassment. As the Department has
acknowledged through guidance documents since 1997, schools, colleges,
and universities have too often ignored sexual harassment affecting
students' and employees' equal access to education. These final
regulations ensure that every recipient is legally obligated to respond
to sexual harassment (or allegations of sexual harassment) of which the
recipient has notice. The final regulations use a definition of actual
knowledge to address the unintended consequences that the constructive
notice standard created for both recipients and students. As explained
more fully in the ``Actual Knowledge'' subsection in the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section of this preamble, the Department believes that the
approach in these final regulations regarding notice of sexual
harassment that triggers a recipient's response obligations is
preferable to the constructive notice standard set forth in Department
guidance. Additionally, as some commenters noted, the constructive
notice standard coupled with the Department's mandate to investigate
all allegations of sexual harassment \485\ may have actually chilled
reporting. Investigations almost always require some intrusion into the
complainant's privacy, and some complainants simply wanted supportive
measures but were not ready or did not desire to participate in a
grievance process. These final regulations provide complainants with
more control over whether or when to report sexual harassment,\486\ and
clearly obligate a
[[Page 30108]]
recipient to offer supportive measures to a complainant with or without
a formal complaint ever being filed.
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\485\ 2011 Dear Colleague Letter at 4-5; 2001 Guidance at 15.
\486\ As noted previously, these final regulations ensure that
reporting or disclosing sexual harassment to any elementary or
secondary school employee triggers the recipient's response
obligations, while postsecondary institutions are permitted to
choose which of their employees must be mandatory reporters. This
broader definition of ``actual knowledge'' for elementary and
secondary schools does not reflect that the Department values the
autonomy of elementary and secondary school students less than the
autonomy of students at postsecondary institutions. The final
regulations respect the autonomy of all complainants. However,
recognizing the general differences between adults in postsecondary
institutions, versus young students in elementary and secondary
schools, we believe the better policy is to ensure that an
elementary or secondary school responds promptly whenever any
employee has notice of sexual harassment, while a postsecondary
institution must respond promptly whenever a Title IX Coordinator or
official with authority has notice of sexual harassment. This
approach does not give as much control to a younger student over
whether disclosure of sexual harassment results in a response from
the Title IX Coordinator, compared to the control retained by a
student at a postsecondary institution to disclose sexual harassment
without automatically triggering a report to the Title IX
Coordinator. However, the final regulations respect the autonomy of,
and give options and control to, all complainants, by protecting
each complainant's right to choose, for example, how to respond to
the Title IX Coordinator's discussion of available supportive
measures and whether to file a formal complaint asking the school to
investigate the sexual harassment allegations. This approach ensures
that an elementary or secondary school student is, for example,
considering supportive measures and the option of filing a formal
complaint with the Title IX Coordinator, who can involve the
student's parent or legal guardian as appropriate. Thus, the final
regulations respect the autonomy of all complainants and aim to give
all complainants options and control over how a school responds to
their sexual harassment experience, yet achieves these aims
differently for elementary and secondary school students, than for
students at postsecondary institutions.
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With respect to commenters' concerns that recipients have knowingly
ignored reports of sexual harassment in the past, and may continue to
do so in the future, such action constitutes deliberate indifference,
if the other requirements of Sec. 106.44(a) are met. When a recipient
with actual knowledge of sexual harassment in its education program or
activity refuses to respond to sexual harassment or a report of sexual
harassment, such a refusal is clearly unreasonable under Sec.
106.44(a) and constitutes a violation of these final regulations.
Changes: The Department expands the definition of actual knowledge
in Sec. 106.30 to include notice to ``any employee of an elementary
and secondary school'' with respect to recipients that are elementary
and secondary schools. We have also revised Sec. 106.8 to require that
recipients must prominently display the Title IX Coordinator's contact
information on the recipient's website, and to state that any person
may report sexual harassment in person, by mail, by telephone, or by
email using that contact information (or by any other means that
results in the Title IX Coordinator receiving the person's verbal or
written report), and that a report may be made at any time (including
during non-business hours) by using the telephone number or email
address, or by mail to the office address, listed for the Title IX
Coordinator.
Student Populations Facing Additional Barriers to Reporting
Comments: Several commenters asserted that designating a single
individual as the person to whom notice triggers a recipient's
obligation to respond creates significant hurdles to reporting for
certain populations of students, including students with disabilities,
immigrant students, international students, transgender students, and
homeless students.
Numerous commenters noted that students with disabilities are more
vulnerable to sexual abuse than their peers without disabilities, are
less likely to report experiences of abuse, and are less likely to have
access to school officials who have the requisite authority to
implement corrective measures under Sec. 106.30. One commenter
asserted that, while the actual knowledge requirement favors the rights
and needs of students with disabilities who are accused of sexual
harassment, this requirement disfavors students with disabilities who
are victims of sexual harassment. The commenter expressed concern that
students with disabilities may only be comfortable communicating
sensitive issues to their own teachers, and in some cases may only be
able to communicate with appropriately trained special education staff.
One commenter stated that, because immigrant students are even less
likely to know to whom they should report, members of immigrant
communities are disadvantaged by the actual knowledge requirement.
Another commenter asserted that international students are more likely
to confide in a teacher or advisor with whom they have close contact,
because cultural and linguistic barriers may make it difficult for
international students to navigate official administrative channels.
Several commenters noted that transgender students, as well as non-
binary students and students who identify with other gender identity
communities, are less likely to report or seek services than students
from other demographics. Commenters argued that replacing the
constructive notice standard with the actual knowledge standard will
reduce the services and support received by transgender students and
students who identify with other gender identity communities.
One commenter asserted that the actual knowledge requirement
disadvantages students who are homeless, students from economically
disadvantaged backgrounds, or students from dysfunctional families; the
commenter described having seen bruises, cuts, and left-over tape
residue from when a student was hospitalized after getting into the
student's parents' crystal methamphetamine. The commenter asserted
that, under the proposed rules, students will lose support from
teachers, placing students in greater danger. The commenter argued that
it is imperative that all elementary and secondary school teachers be
mandatory reporters.
Discussion: The Department requires all recipients to address sex
discrimination against all students, including students in vulnerable
populations. The revised definition of ``actual knowledge'' in Sec.
106.30 includes notice to any elementary and secondary school employee,
addressing the concerns raised by commenters that in the elementary and
secondary school context, students with disabilities, LGBTQ students,
students who are immigrants, and others, face barriers to reporting
sexual harassment only to certain employees or officials. We have also
revised Sec. 106.8 to ensure that all students and employees are
notified of the Title IX Coordinator's contact information, to require
that contact information to be prominently displayed on the recipient's
website, and to clearly state that any person may report sexual
harassment to the Title IX Coordinator using any of several accessible
options, including by phone or email at any time of day or night. Thus,
as to students at postsecondary institutions, clear, accessible
reporting options are available for any student (or third party, such
as an alleged victim's friend or a bystander witness to sexual
harassment) to contact the Title IX Coordinator and trigger the
postsecondary institution's mandatory response obligations. We believe
that the final regulations thus provide all students, including
students with disabilities, LGBTQ students, students who are
immigrants, and others, with accessible ways of reporting, and do not
leave any student facing barriers or challenges with respect to how to
report to the Title IX Coordinator.\487\
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\487\ Section 106.8(a) (``Any person may report sex
discrimination, including sexual harassment (whether or not the
person reporting is the person alleged to be the victim of conduct
that could constitute sex discrimination or sexual harassment), in
person, by mail, by telephone, or by electronic mail, using the
contact information listed for the Title IX Coordinator [which,
under Sec. 106.8(b) must be posted on the recipient's website], or
by any other means that results in the Title IX Coordinator
receiving the person's verbal or written report. Such a report may
be made at any time (including during non-business hours) by using
the telephone number or electronic mail address, or by mail to the
office address, listed for the Title IX Coordinator.'') (emphasis
added).
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[[Page 30109]]
With respect to commenters who assert that the Department is
removing a ``mandatory reporting'' requirement or eliminating
``mandatory reporters,'' as discussed in the ``Actual Knowledge''
subsection of the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section of this preamble, the
adapted actual knowledge requirement in these final regulations
distinguishes between elementary and secondary schools (where notice to
any employee now triggers the recipient's response obligations) and
postsecondary institutions (where notice to the Title IX Coordinator
and officials with authority triggers the recipient's response
obligations, but postsecondary institution recipients have discretion
to determine which of their employees should be mandatory reporters,
and which employees may keep a postsecondary student's disclosure about
sexual harassment confidential).
In response to commenters' concerns, in elementary and secondary
schools, all students (including those in vulnerable populations) can
report sexual harassment to any school employee to trigger the
recipient's obligation to respond. While the imputation of knowledge
based solely on the theories of vicarious liability \488\ or
constructive notice is insufficient, notice to any elementary and
secondary school employee--including a teacher, teacher's aide, bus
driver, cafeteria worker, counselor, school resource officer,
maintenance staff worker, or other school employee--charges the
recipient with actual knowledge, triggering the recipient's response
obligations. This expanded definition of actual knowledge in elementary
and secondary schools gives all students, including those with
disabilities who may face challenges communicating, a wide pool of
trusted employees of elementary and secondary schools (i.e., any
employee) to whom the student can report. As to all recipients, Sec.
106.30 defining ``actual knowledge'' is also revised to expressly state
that ``notice'' includes a report to the Title IX Coordinator as
described in Sec. 106.8(a).\489\ These final regulations thus ensure
that all students and employees have clear, accessible reporting
channels, and ensure that elementary and secondary school students can
disclose sexual harassment to any school employee and the recipient
will be obligated to respond promptly and supportively in accordance
with Sec. 106.44(a).
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\488\ The Department has revised the Sec. 106.30 definition of
actual knowledge by replacing ``respondeat superior'' with
``vicarious liability.'' ``Vicarious liability'' conveys the same
meaning as ``respondeat superior,'' but ``vicarious liability'' is
more colloquial and is less likely to be confused with the word
``respondent'' used throughout these final regulations.
\489\ We have revised Sec. 106.8(a) to expressly state that any
person may report sexual harassment using the contact information
required to be listed for the Title IX Coordinator (which must
include an office address, telephone number, and email address), or
by any other means that results in the Title IX Coordinator
receiving the person's verbal or written report, and that a report
may be made at any time (including during non-business hours) by
using the listed telephone number or email address, or by mail to
the listed office address.
---------------------------------------------------------------------------
While the Department acknowledges commenters' concerns about actual
knowledge introducing an additional hurdle to the reporting process for
certain students at postsecondary institutions, the Department believes
the actual knowledge requirement will bring benefits to students that
outweigh potential concerns. Under these final regulations, the
recipient must notify and inform students of the right to report sexual
harassment to the Title IX Coordinator, a trained professional who is
well positioned to contact the complainant to confidentially discuss
the complainant's wishes regarding supportive measures (which must be
offered regardless of whether the complainant also chooses to file a
formal complaint), and explain the process of filing a formal
complaint. Students may choose to confide in postsecondary institution
employees to whom notice does not trigger the recipient's response
obligations, without such confidential conversations necessarily
resulting in the student being contacted by the Title IX Coordinator.
This results in greater respect for the autonomy of a college student
over what kind of institutional response will best serve the student's
needs and wishes. This gives students at postsecondary institutions
greater control over whether or when to report than does a requirement
of universal mandatory reporting.
The Department understands commenters' concerns that some students
may not feel comfortable discussing a sexual harassment experience with
a stranger. Partly in response to such concerns, the final regulations
designate any school employee as someone with whom an elementary or
secondary school student can share a report and know that the recipient
is then responsible for responding promptly. The Department believes it
is reasonable to expect students at a university or college to
communicate with the Title IX Coordinator or other official with
authority, as students would with other professionals, including
doctors, therapists, and attorneys, many of whom college students do
not know personally when they first seek assistance with sensitive,
personal issues. At the same time, these final regulations permit each
postsecondary institution to decide whether or not to implement a
universal mandatory reporting policy. As discussed in the ``Actual
Knowledge'' subsection of the ``Adoption and Adaption of the Supreme
Court's Framework to Address Sexual Harassment'' section of this
preamble, there is conflicting research about whether universal
mandatory reporting policies for postsecondary institutions benefit
victims, or harm victims.
Although these final regulations do not expressly require
recipients to allow complainants to bring a supportive friend to an
initial meeting with the Title IX Coordinator, nothing in these final
regulations prohibits complainants from doing so. Indeed, many people
bring a friend or family member to doctors' visits for extra support,
whether to assist a person with a disability or for emotional support,
and the same would be true for a complainant reporting to a Title IX
Coordinator. Once a grievance process has been initiated, these final
regulations require recipients to provide the parties with written
notice of each party's right to select an advisor of choice, and
nothing precludes a party from choosing a friend to serve as that
advisor of choice.\490\
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\490\ Section 106.45(b)(2); Sec. 106.45(b)(5)(iv).
---------------------------------------------------------------------------
The Department agrees with the commenter who asserted that
recipients should publish information to help students locate the Title
IX Coordinator and other staff to whom notice conveys actual knowledge
on the recipient. These final regulations in Sec. 106.8 require
recipients to designate and authorize a Title IX Coordinator, notify
all students and employees of the name or title, office address,
electronic mail address, and telephone number of the Title IX
Coordinator, and prominently display the contact information for the
Title IX Coordinator on recipients' websites.
The Department disagrees that the actual knowledge requirement
favors respondents over complainants. The final regulations' approach
to designating Title IX Coordinators, officials with authority, and
elementary and secondary school employees as persons to whom notice
triggers the recipients' response obligations, is designed to ensure
that recipients are held responsible for meaningful responses to known
incidents of sexual
[[Page 30110]]
harassment, including by providing equitable responses to the
complainant and respondent,\491\ while taking into account the
different needs and expectations of elementary and secondary school
students, and postsecondary institution students. In elementary and
secondary schools the recipient must respond to sexual harassment when
notice is given to any school employee; in postsecondary institutions
where complainants are more capable of exercising autonomy over when to
report and seek institutional assistance, the complainant (or any third
party) may report to a Title IX Coordinator or official with authority.
We reiterate that ``notice'' may come to a Title IX Coordinator, an
official with authority, or an elementary and secondary school
employee, from any source (i.e., from the person alleged to be the
victim of sexual harassment, from any third party such as a friend,
parent, or witness to sexual harassment, or from the employee's or
official's first-hand observation of conduct that could constitute
sexual harassment).
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\491\ Section 106.44(a) (requiring the recipient to respond
equitably by offering supportive measures to a complainant and by
refraining from taking disciplinary action against a respondent
without first following a grievance process that complies with Sec.
106.45).
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Changes: The Department has revised the Sec. 106.30 definition of
``actual knowledge'' to specify that actual knowledge includes notice
of sexual harassment to ``any employee'' in an elementary and secondary
school. The Department revised the Sec. 106.30 definition of ``actual
knowledge'' by replacing ``respondeat superior'' with ``vicarious
liability.''
Chilling Reporting
Comments: Many commenters asserted that sexual assault is
chronically underreported, and that an actual knowledge requirement
would create an additional barrier to reporting and chill victims'
willingness to try to report sexual harassment. Several commenters
noted that studies show that, although only five percent of rapes are
reported to officials, nearly two-thirds of victims tell someone about
their experience (e.g., friends or family),\492\ and commenters argued
that limiting the employees who are mandatory reporters will result in
the Title IX Coordinator knowing about even fewer incidents and helping
even fewer victims, whereas the current system centralizes reporting so
that fewer victims fall through the cracks. Numerous commenters
asserted that sexual harassment and assault is a sensitive issue that
many individuals only feel comfortable discussing within a trusted
relationship, if they feel bold enough to discuss it at all.
---------------------------------------------------------------------------
\492\ Commenters cited: Massachusetts Institute of Technology,
Survey Results: 2014 Community Attitudes on Sexual Assault (2014).
---------------------------------------------------------------------------
Another commenter characterized the proposed rules' definition of
actual knowledge in Sec. 106.30 as ``loose.'' According to this
commenter, the proposed rules' definition of actual knowledge would
allow for a situation where a student reports to an agent whom the
student trusts and thinks that the report has been conveyed to the
recipient, but for some reason, that agent does not properly report the
incident. The commenter contended that in this situation the school can
claim that it did not have actual knowledge of the incident and
therefore the school cannot be held accountable for inaction. Multiple
commenters stated that complainants should be able to go to any school
official with whom the student feels comfortable, to report sexual
harassment, and that complainants should not be forced to go to a few
specific people within the school.
Several commenters opposed the actual knowledge definition in Sec.
106.30, asserting that most students do not know which employees have
the authority to redress sexual harassment and would not even know who
to contact. Also, multiple commenters cited a study that found that
survivors often do not report their sexual assaults because of fear of
being disbelieved or fear that their assault will not taken
seriously,\493\ and many commenters argued that the actual knowledge
requirement will exacerbate these fears, thereby resulting in even less
reporting of sexual harassment. Commenters argued that narrowing the
scope of trusted adults to whom survivors of sexual assault can speak
to receive support is an unjust violation of their right to safety.
---------------------------------------------------------------------------
\493\ Commenters cited: Kathryn J. Holland & Lilia M. Cortina,
``It happens to girls all the time'': Examining sexual assault
survivors' reasons for not using campus supports, 59 Am. J. of
Community Psychol. 1-2 (2017).
---------------------------------------------------------------------------
Numerous commenters asserted that giving complainants greater
control over whether and when to report will encourage more people to
come forward to report sexual misconduct. A few commenters stated that
the actual knowledge requirement pushes back against mandatory
reporting policies that undermine a student's trust in professors and
university employees. Commenters argued that because recipients often
require employees to report allegations of sexual harassment to the
Title IX office even when disclosures are made to employees in
confidence, including in instances in which the complainant expresses
no interest in an investigation, and the proposed rules would not
require recipients to have these mandatory reporting policies, the
actual knowledge requirement would encourage more complainants to
report sexual harassment because the complainants have greater control
over what action a school takes in response to each situation,
including whether the report will proceed to an investigation without
the complainant's permission. One commenter asserted that mandatory
reporter policies frequently serves as a deterrent to complainants who
are seeking resources rather than adjudication. The commenter stated
that mandatory reporting enhances the risks of revictimization and
penalizes students who wish to come forward and seek services rather
than a grievance process.
Another commenter asserted that postsecondary institution
recipients should have to require that any employee to whom a student
discloses sexual harassment provide the student with information about
how to report to the Title IX office, the option of reporting, and the
availability of supportive services. The commenter argued that a
student should be told (by any employee in whom a student confides a
sexual harassment experience) that unless the student makes a report,
the institution will not know of the incident and will therefore do
nothing about it. Several commenters supporting Sec. 106.30 asserted
that the final regulations should allow complainants to meet directly
with the Title IX Coordinator who can provide the array of options
available to them before deciding to file a formal complaint. One
commenter expressed support of the proposed rules' allowance of greater
informality in adjudications, because research shows that victims want
more informal options, with less mandatory reporting.\494\
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\494\ Commenters cited: National Academies of Science,
Engineering, and Medicine, Sexual Harassment of Women: Climate,
Culture, and Consequences in Academic Sciences, Engineering, and
Medicine (Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------
Discussion: As discussed above, the final regulations revise the
definition of actual knowledge to include notice to any elementary and
secondary school employee, thus alleviating many commenters' concerns
about requiring young students to both know how, and be willing to,
report sexual harassment incidents to a particular school official
[[Page 30111]]
or to the Title IX Coordinator. As discussed above, the actual
knowledge requirement in the postsecondary institution context means
notice to the Title IX Coordinator or an official with authority, and
the Department believes this approach respects a postsecondary
institution complainant's autonomy and choice over whether or when to
report sexual harassment, while still ensuring that complainants and
third parties have clear, accessible ways of reporting sexual
harassment.
The Department agrees with commenters who pointed out that the
actual knowledge requirement in the postsecondary institution context
appropriately gives more control and autonomy to each complainant to
choose to discuss a private incident confidentially (for example, with
a trusted professor or resident advisor), or to report the incident in
order to seek supportive measures or a grievance process against the
respondent. Numerous commenters asserted that preserving a survivor's
autonomy and control in the aftermath of a traumatic experience of
sexual violence can be crucial to the survivor's ability to heal and
recover.\495\ The Department agrees with commenters who asserted that
victims want more informal options with less mandatory reporting
because mandatory reporting policies may have the unintended
consequence of penalizing complainants who wish to come forward and
seek supportive measures, by subjecting complainants to contact with
the Title IX office, (which can lead to a formal grievance process even
without the complainant choosing to file a formal complaint),\496\ when
that was not what some complainants desired.\497\ Therefore, the
Department believes the actual knowledge requirement may benefit
complainants at postsecondary institutions whose reports were chilled
under a system of constructive notice. In the postsecondary institution
context, the final regulations respect a complainant's decision about
whether or when to report, and ensure that a complainant may receive
supportive measures irrespective of whether they file a formal
complaint of sexual harassment.\498\
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\495\ E.g., Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous
Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26
Journal of Traumatic Stress 1, 120 (2013) (describing
``institutional betrayal'' as when an important institution, or a
segment of it, acts in a way that betrays its member's trust); Merle
H. Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29
Yale J. of L. & Feminism 123, 140-141 (2017) (identifying one type
of institutional betrayal as the harm that occurs when ``the
survivor thinks she is speaking to a confidential resource, but then
finds out the advocate cannot keep their conversations private'').
\496\ Under the final regulations, a complainant always retains
the option of initiating a grievance process (by filing a formal
complaint) and is never required to file a formal complaint in order
to receive supportive measures. Sec. 106.44(a); Sec. 106.44(b)(1);
Sec. 106.30 (defining ``formal complaint''). However, a Title IX
Coordinator may, when it is not clearly unreasonable in light of the
known circumstances, sign a formal complaint that initiates a
grievance process against a respondent even when that is not what
the complainant wished to have happen. Sec. 106.30 (defining
``formal complaint''); Sec. 106.44(a). Thus, universal mandatory
reporting policies may sometimes result in involving a complainant
in a grievance process when that is not what the complainant wanted,
and the final regulations aim to make that less likely in the
postsecondary institution context by allowing each postsecondary
institution to decide for itself whether to have a universal
mandatory reporting policy.
\497\ E.g., Carmel Deamicis, Which Matters More: Reporting
Assault or Respecting a Victim's Wishes?, The Atlantic (May 20,
2013) (describing a campus ``speak-out'' event at which sexual
violence survivors were supposed to be able to safely share their
stories with other but the university's mandatory reporting policy
required any residential advisor who ``recognizes the voice of a
speaker'' to report ``that person's name and story'' to the
university's Title IX Coordinator, resulting in many resident
advisors choosing to respect victims' anonymity even knowing that to
do so violated campus policy because ``[w]hen a policy doesn't
embody the values it's supposed to protect, sometimes it's worth
breaking''); id. (noting that the university's mandatory reporting
policy was a direct result of the Department's withdrawn 2011 Dear
Colleague Letter, describing professors and staff members ``angrily
arguing against the new policy'' because they ``can't believe the
school is asking them to violate their students' trust,'' quoting a
victim advocate as wondering ``if you want to help victims in their
time of need, why not leave it up to the victim?'' and quoting a
student volunteer at the speak-out as stating: ``Sexual harassment
or assault is a crime of power . . . . The survivor is stripped of
their power and control, and one of the only aspects that remains in
their control is if, how, when, and to whom to share their story''
and mandatory reporting ``removes that last aspect of control that a
survivor has.''); Allie Grasgreen, Mandatory Reporting Perils,
Inside Higher Ed (Aug. 30, 2013) (quoting Title IX activist Andrea
Pino as stating: ``Mandatory reporting is supposed to alleviate that
lack of transparency but putting students in this predicament in
which they do not feel like they can trust people for
confidentiality is doing the opposite . . . . It's literally putting
students in situations in which they can't be honest.'').
\498\ Section 106.44(a) (requiring a recipient's response to
include informing the complainant of the availability of supportive
measures with or without the filing of a formal complaint and
explaining to the complainant the option for filing a formal
complaint). While elementary and secondary school students retain
less control over when disclosure of sexual harassment triggers the
school's mandatory response obligations, these students (with
involvement of their parents as appropriate) do retain control over
whether to accept supportive measures, and whether to also file a
formal complaint. Sec. 106.44(a); Sec. 106.6(g).
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In response to commenters' concerns that under the proposed rules
complainants would have difficulty finding the Title IX Coordinator or
that there would be an increased potential for misunderstandings about
whether a complainant wanted the school to investigate, the final
regulations strengthen existing regulatory requirements that recipients
notify students and employees (and parents of elementary and secondary
school students) of the contact information for the Title IX
Coordinator, post the Title IX Coordinator's contact information on the
recipient's website, and disseminate information about how to report
sexual harassment and file a formal complaint.\499\ Additionally,
revised Sec. 106.44(a) requires the Title IX Coordinator to contact
each complainant (which includes a parent or legal guardian, as
appropriate) to inform the complainant of the option of filing a formal
complaint while assuring the complainant that supportive measures are
available irrespective of whether the complainant chooses to file a
formal complaint.
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\499\ Section 106.8.
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Under the rubric of actual knowledge, as applied by Federal courts
interpreting Supreme Court precedent, whether certain recipient
employees are officials with authority is a fact specific inquiry.
Accordingly, the final regulations: (1) Continue, as proposed in the
NPRM, to ensure that notice to a recipient's Title IX Coordinator
conveys actual knowledge, and (2) broaden the definition of actual
knowledge for elementary and secondary schools to include notice to any
school employee.\500\ In this manner, the final regulations ensure that
students in elementary and secondary schools can discuss, disclose, or
report a sexual harassment incident to any school employee, conveying
actual knowledge to the school and requiring the school to respond
appropriately, while postsecondary institutions have discretion to
offer college and university students options to discuss or disclose
sexual harassment experiences with institutional employees for the
purpose of emotional support, or for the purpose of receiving
supportive measures and/or initiating a grievance process against the
respondent.
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\500\ Section 106.30 (defining ``actual knowledge'').
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The Department acknowledges that the actual knowledge standard
relies on the Title IX Coordinator as an essential component of the
process to address sexual harassment, especially in the postsecondary
institution context. Recipients have been required to designate a Title
IX Coordinator for decades, and the Department believes that these
final regulations ensure that all students have clear, accessible
options for making reports that convey
[[Page 30112]]
actual knowledge to the recipient.\501\ Nothing in these final
regulations prevents a postsecondary institution or any other recipient
from requiring employees who are not Title IX Coordinators or officials
with authority, to report allegations of sexual harassment to the Title
IX Coordinator when such employees become aware of such
allegations.\502\
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\501\ Section 106.30 defines ``actual knowledge'' to include
notice to any elementary and secondary school employee, or to any
Title IX Coordinator, and expressly states that ``notice'' includes
but is not limited to a report to the Title IX Coordinator as
described in Sec. 106.8(a) (which, in turn, states that any person
may report to the Title IX Coordinator in person or by mail to the
office address, by telephone, or by email, using the contact
information for the Title IX Coordinator that the recipient must
send to students, employees, and parents and guardians of elementary
and secondary school students). Sec. 106.8(b) (requiring recipients
to prominently display the Title IX Coordinator's contact
information on recipients' websites).
\502\ We have also revised Sec. 106.30 defining ``actual
knowledge'' to state that the mere fact that an individual is
required to, or has been trained to, report sexual harassment, does
not mean that individual is an ``official with authority.'' We made
this revision so that a recipient may require and/or train
contractors, volunteers, or others to report to a Title IX
Coordinator (or other appropriate school personnel) without
automatically converting any such individual into a person to whom
notice charges the recipient with actual knowledge.
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The Department disagrees that the actual knowledge requirement will
chill reports because complainants might worry that the Title IX
Coordinator will not believe or take their reports seriously, or that
the actual knowledge requirement violates complainants' ``right to
safety.'' These final regulations require that a recipient's Title IX
Coordinator receives training on how to serve impartially and without
bias pursuant to Sec. 106.45(b)(1)(iii), and must offer each
complainant information about supportive measures (designed in part to
protect the complainant's safety) and how to file a formal complaint,
under Sec. 106.44(a). If a Title IX Coordinator responds to a
complainant by not taking a report seriously, or with bias against the
complainant, the recipient has violated these final regulations.
Changes: Section 106.30 defining ``actual knowledge'' is revised to
include notice to any elementary and secondary school employee. Section
106.44(a) adds specific requirements that the recipient must offer
supportive measures to a complainant, and the Title IX Coordinator must
contact each complainant to discuss availability of supportive measures
with or without the filing of a formal complaint, consider the wishes
of the complainant with respect to supportive measures, and explain the
process for filing a formal complaint.
Generally Burdening Complainants
Comments: Many commenters asserted that the actual knowledge
definition and requirement places the burden squarely on victims to
report harm. One commenter asserted that under the proposed rules,
complainants--rather than recipients--would bear the responsibility to
report sexual harassment and assault. Numerous commenters stated that
postsecondary students are not yet full adults, and that the proposed
regulations unrealistically assume that an 18 year old freshman in
college is ready to face the process required by the proposed
regulations.
Many commenters asserted that eliminating the ``responsible
employees'' rubric used in Department guidance will delay, if not
totally hinder, the ability of complainants to get prompt assistance in
the aftermath of trauma. Commenters stated that complainants will need
to navigate the school's bureaucracy to locate and contact the Title IX
Coordinator, which will take time, and in the meantime this will force
complainants to continue to see their perpetrators in classes or
dormitories while the complainant navigates the school's bureaucracy.
Another commenter asked why the proposed regulations removed the term
``responsible employees'' that was used in Department guidance.
Discussion: The Department acknowledges that the actual knowledge
requirement in the final regulations departs from the constructive
notice approach relied on in previous Department guidance, wherein the
Department took the position that any ``responsible employee'' (in both
elementary and secondary schools, and postsecondary institutions) who
knew or should have known about sexual harassment triggered the
recipient's obligation to address sexual harassment.\503\ However, we
disagree that the actual knowledge definition in Sec. 106.30 (as
revised) and the actual knowledge requirement in Sec. 106.44(a),
burden complainants or will result in delayed responses to reported
sexual harassment. In response to commenters' concerns that students
and employees may not know how to report to the Title IX Coordinator,
we have revised Sec. 106.8 to better ensure that students, employees,
and others have clear, accessible options for reporting to the Title IX
Coordinator (including options that can be utilized during non-business
hours), and to emphasize that reports may be made by complainants
(i.e., the person alleged to be the victim of sexual harassment) or by
any other person. Revised Sec. 106.8 now requires recipients to notify
all students, employees, and parents of elementary and secondary school
students (and others) of the Title IX Coordinator's contact
information, to post that contact information prominently on the
recipient's website, and specifies that ``any person'' may report using
the listed contact information for the Title IX Coordinator.
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\503\ E.g., 2001 Guidance at 13.
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We appreciate a commenter's inquiry about the omission of
``responsible employees'' in these final regulations. There are two
ways in which the final regulations alter references to ``responsible
employees.'' First, existing Title IX regulations have long used a
heading, ``Designation of responsible employee,'' preceding 34 CFR
106.8(a); this reference to ``responsible employee'' has always, in
reality, been a reference to the recipient's Title IX Coordinator, and
the Department is revising Sec. 106.8(a) to reflect this reality by
using the phrase ``Designation of Title IX Coordinator'' in the header
for Sec. 106.8(a) and specifying in that section that the employee
designated and authorized by the recipient to coordinate the
recipient's Title IX responsibilities is known as, and must be referred
to as, the ``Title IX Coordinator.'' Second, the term ``responsible
employee'' appears throughout the Department's past guidance documents.
In the 2001 Guidance, the Department defined a responsible employee as
``any employee who has the authority to take action to redress the
harassment, who has the duty to report to appropriate school officials
sexual harassment or any other misconduct by students or employees, or
an individual who a student could reasonably believe has this authority
or responsibility.'' \504\ As explained in the ``Actual Knowledge''
subsection of the ``Adoption and Adaption of the Supreme Court
Framework to Address Sexual Harassment'' section of this preamble,
these final regulations do not use the ``responsible employees'' rubric
that was set forth in Department guidance. In the elementary and
secondary school context, there is no need to decide which employees
are ``responsible employees'' because under revised Sec. 106.30
defining ``actual knowledge,'' notice to any elementary and secondary
school employee triggers the recipient's response obligations. In the
postsecondary institution context, these final regulations do not use
the responsible employees rubric in its entirety, although the first of
the three
[[Page 30113]]
categories described in guidance as ``responsible employees'' are still
used in these final regulations, because notice to an official with
authority is the equivalent of the category referred to in guidance as
an employee who has the authority to redress the harassment. In the
postsecondary institution context, the Department believes that
complainants will benefit from allowing postsecondary institutions to
decide which of their employees (aside from the Title IX Coordinator,
and officials with authority) may listen to a student's disclosure of
sexual harassment without being mandated to report the sexual
harassment incident to the Title IX Coordinator.
---------------------------------------------------------------------------
\504\ 2001 Guidance at 13.
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A recipient (including a postsecondary institution recipient) may
give authority to as many officials as it wishes to institute
corrective measures on behalf of the recipient, and notice to such
officials with authority will trigger the recipient's response
obligations. A recipient also may choose to train employees and other
individuals, such as parent or alumni volunteers, on how to report or
respond to sexual harassment, even if these employees and individuals
do not have the authority to take corrective measures on the
recipient's behalf. The Department will not penalize recipients for
such training by declaring that having trained people results in notice
to those people charging the recipient with actual knowledge. The
Department recognizes that recipients may not engage in such training
efforts if such efforts may increase the recipient's liability.\505\
Accordingly, these final regulations specify in the definition of
actual knowledge in Sec. 106.30 that: The ``mere ability or obligation
to report sexual harassment or to inform a student about how to report
sexual harassment, or having been trained to do so, does not qualify an
individual as one who has authority to institute corrective measures on
behalf of the recipient.''
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\505\ Id. Under the 2001 Guidance and subsequent guidance
documents, a recipient was required to ``ensure that employees are
trained so that . . . responsible employees know that they are
obligated to report harassment to appropriate school officials.''
2001 Guidance at 13. Accordingly, training an employee may have
increased the recipient's liability, as such training indicated the
recipient's intention to treat the trained employees as responsible
employees. (For reasons explained in this subsection ``Actual
Knowledge'' under the section ``Section 106.30 Definitions'' as well
as the ``Actual Knowledge'' subsection of the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section of this preamble, the Department no longer
adheres to the rubric of ``responsible employees'' for reasons that
differ for elementary and secondary schools, than for postsecondary
institutions.) These final regulations require training for Title IX
Coordinators, investigators, decision-makers, and any person who
facilitates an informal resolution process. Sec. 106.45(b)(1)(iii).
A recipient may train more employees or other persons without fear
of creating liability because the ``mere ability or obligation to
report sexual harassment or having been trained to do so, does not
qualify an individual as one who has authority to institute
corrective measures on behalf of the recipient,'' as described in
the definition of ``actual knowledge'' in Sec. 106.30.
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The Department disagrees that the actual knowledge requirement will
delay implementation of emergency or urgently needed supportive
measures compared to policies developed under a constructive notice
requirement. In elementary and secondary schools the final regulations
provide that reporting to any school employee triggers the school's
prompt response. Once the elementary or secondary school has actual
knowledge of sexual harassment, under revised Sec. 106.44(a), the
recipient must promptly offer the complainant supportive measures, and
the Title IX Coordinator must promptly contact the complainant to
discuss the availability of supportive measures as defined in Sec.
106.30, consider the complainant's wishes with respect to supportive
measures, inform the complainant of the availability of supportive
measures with or without the filing of a formal complaint, and explain
to the complainant the process for filing a formal complaint. The same
obligations to respond promptly are triggered in postsecondary
institutions whenever the Title IX Coordinator or an official with
authority has notice of sexual harassment.
Although commenters asserted that some complainants, even at
postsecondary institutions, are too young, immature, or traumatized to
contact a Title IX Coordinator, the Department notes that nothing in
the final regulations prevents a complainant from first discussing the
harassment situation with a trusted mentor or having a supportive
friend with them to meet with or otherwise report to the Title IX
Coordinator. The Department reiterates that under the final
regulations, a complainant may report to the Title IX Coordinator and
receive supportive measures without filing a formal complaint or
otherwise participating in a grievance process, that reports can be
made using any of the contact information for the Title IX Coordinator
including office address, telephone number, or email address, and that
reports by phone or email may be made at any time, including during
non-business hours. Thus, we believe that the final regulations provide
clear, accessible reporting options and will not cause delays in the
responsibility or ability of a Title IX Coordinator to receive a report
and then respond promptly, including by discussing with the complainant
services that may be urgently needed to preserve a complainant's equal
educational access, protect the complainant's safety, and/or deter
sexual harassment, offering supportive measures to the complainant, and
remaining responsible for effective implementation of the supportive
measures.\506\
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\506\ Section 106.30 (defining ``supportive measures'' in
pertinent part to mean individualized services, reasonably
available, offered without fee or charge, designed to restore or
preserve a complainant's equal access to the recipient's education
program or activity without unreasonably burdening the other party,
and/or designed to protect the complainant's safety or deter sexual
harassment, and stating that the Title IX Coordinator is responsible
for effective implementation of supportive measures).
---------------------------------------------------------------------------
Changes: The Department revised the definition of actual knowledge
in Sec. 106.30 to add that the mere ability or obligation to report
sexual harassment or to inform a student about how to report sexual
harassment, or having been trained to do so, does not qualify an
individual, as one who has the authority to institute corrective
measures on behalf of the recipient. We have also revised Sec.
106.44(a) to require the recipient promptly to offer the complainant
supportive measures and to require the Title IX Coordinator promptly to
contact the complainant to discuss the availability of supportive
measures as defined in Sec. 106.30, consider the complainant's wishes
with respect to supportive measures, inform the complainant of the
availability of supportive measures with or without the filing of a
formal complaint, and explain to the complainant the process for filing
a formal complaint.
Employees' Obligations
Comments: Several commenters expressed concern that the definition
of actual knowledge means that some employees previously designated as
``responsible employees'' or mandatory reporters under Department
guidance would no longer undergo training about sexual violence on
campus. Many commenters believed that under the proposed rules, fewer
employees would be mandatory reporters and thus would be untrained when
students disclose an incident of sexual harassment. Many commenters
asserted that, without mandatory reporting, professors, coaches,
resident advisors, or teaching assistants may respond to victims based
on personal preferences or biases (perhaps because the employee knows
the accused student, or is biased against believing complainants), and
argued that this will impact victims' ability to obtain assistance from
unbiased, trained
[[Page 30114]]
personnel. Several commenters argued that this, in turn, will expose
recipients to increased litigation for failure to respond to sexual
misconduct known by their faculty and staff but not reported to their
Title IX offices.
Another commenter asked the Department to reexamine existing
regulations under the Clery Act to determine whether student employees
who are campus security authorities (CSAs) under the Clery Act have
conflicting duties under the proposed regulations and the Clery Act
regulations.
Another commenter asked the Department to clarify why coaches and
athletic trainers were not designated in the proposed rules as
responsible employees, when this poses a conflict with NCAA (National
Collegiate Athletic Association) guidelines.
One commenter asked what officials the Department considers to have
the ``authority to initiate corrective measures,'' believing that the
language in the proposed rules could be interpreted to limit that role
to only the Title IX Coordinator. Relatedly, several commenters
requested that the Department provide clarity on what constitutes
``authority to initiate corrective measures'' and what types of
corrective measures would be included; commenters argued that all staff
and faculty have at least some ability to initiate some types of
corrective measures.
At least one commenter asserted that requiring institutions, such
as the commenter's community college, to respond only when the
institution has actual notice, is a positive development. The commenter
asserted that the commenter's institution employs part-time and
contract employees, and vendors, outside the institution's direct
control with no authority to institute corrective measures. This
commenter therefore appreciated the flexibility offered under the
proposed rules, for postsecondary institutions to design their own
mandatory reporting policies. One commenter, a graduate student
instructor, asserted that the actual knowledge definition was helpful
to clarify the commenter's role and asserted that current guidance is
unclear.
One commenter, a Title IX Coordinator at a university, asserted
that the constructive notice standard is difficult to implement. The
commenter stated that those not directly involved in Title IX
compliance or student conduct, such as full-time faculty, seem to have
trouble understanding the complexity of the law in that area, even with
training.
Discussion: The 2001 Guidance indicated that responsible employees
should be trained to report sexual harassment to appropriate school
officials.\507\ Not all employees, however, were responsible employees
and, thus, not all employees had an obligation to report sexual
harassment to the Title IX Coordinator or other school officials. With
respect to training, the Department in its 2001 Guidance stated:
``Schools need to ensure that employees are trained so that those with
authority to address [sexual] harassment know how to respond
appropriately, and other responsible employees know that they are
obligated to report [sexual] harassment to appropriate officials.''
\508\ Under the 2001 Guidance, such ``[t]raining for employees . . .
include[s] practical information about how to identify [sexual]
harassment and, as applicable, the person to whom it should be
reported.'' \509\ As discussed previously, these final regulations no
longer use a responsible employees rubric, and instead define the pool
of employees to whom notice triggers a recipient's response obligations
differently for elementary and secondary schools, and for postsecondary
institutions. Like the 2001 Guidance, these final regulations
incentivize recipients to train their employees; however, rather than
mandate training of all employees, these final regulations require
robust, specific training of every recipient's Title IX Coordinator
\510\ and place specific response obligations on Title IX
Coordinators.\511\ The Department believes that this approach most
effectively ensures that recipients meet their Title IX obligations:
the Department will hold recipients accountable for meeting Title IX
obligations, the Department requires Title IX Coordinators to be well
trained, and the Department leaves recipients discretion to determine
the kind of training to other employees that will best enable the
recipient, and its Title IX Coordinator, to meet Title IX obligations.
Accordingly, the Department disagrees with commenters that removing any
``mandatory reporting'' requirement or the ``responsible employee''
rubric allows employees to freely respond to victims out of personal
preferences or biases. For example, an elementary or secondary school
recipient must promptly offer supportive measures to a complainant
under Sec. 106.44(a) whenever one of its employees has notice of
sexual harassment, and the Title IX Coordinator specifically must
contact the complainant. This ensures that the recipient is responsible
for having an employee specially trained in Title IX matters (including
the obligation to be free from bias, impartial, and having been trained
with materials that do not rely on sex stereotypes) \512\ communicates
with the complainant. Regardless of the training a recipient gives to
employees, the Department will hold the recipient accountable for
meeting the recipient's response obligations under Sec. 106.44(a) and
for designating and authorizing a Title IX Coordinator \513\ who has
been trained to serve free from bias. For reasons discussed previously,
including in the ``Actual Knowledge'' subsection of the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section of this preamble, the Department believes that
allowing postsecondary institution recipients to decide how its
employees (other than the Title IX Coordinator, and officials with
authority) respond to notice of sexual harassment appropriately
respects the autonomy of postsecondary students to choose to disclose
sexual harassment to employees for the purpose of triggering the
postsecondary institution's Title IX response obligations, or for
another purpose (for example, receiving emotional support without
desiring to ``officially'' report). In order to ensure that all
students and employees have clear, accessible reporting channels, we
have revised Sec. 106.8 to require a recipient to notify its
educational community of the contact information for the Title IX
Coordinator \514\ and post
[[Page 30115]]
that contact information prominently on the recipient's website, and to
expressly state that ``any person'' may report sexual harassment at any
time, including during non-business hours, by using the telephone
number or email address (or by mail to the office address) listed for
the Title IX Coordinator, to emphasize that giving the Title IX
Coordinator notice of sexual harassment that triggers the recipient's
response obligations does not require scheduling an in-person
appointment with the Title IX Coordinator.
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\507\ 2001 Guidance at 13.
\508\ 2001 Guidance at 13.
\509\ Id.
\510\ Section 106.45(b)(1)(iii).
\511\ E.g., Sec. 106.44(a) (the Title IX Coordinator must
promptly contact each person alleged to be the victim of sexual
harassment--i.e., each complainant--regardless of who reported the
complainant's sexual harassment victimization, and must discuss with
the complainant the availability of supportive measures with or
without the filing of a formal complaint, the complainant's wishes
with respect to supportive measures, and the option of filing a
formal complaint that initiates a grievance process against a
respondent).
\512\ Section 106.45(b)(1)(iii) (describing mandatory training,
and requirements to be free from bias, for the Title IX
Coordinator).
\513\ Section 106.8(a).
\514\ Section 106.8(a) is also revised to require recipients to
refer to the employee designated and authorized to coordinate the
recipient's Title IX obligations as ``the Title IX Coordinator,'' in
order to further clarify for students and employees the Title IX
Coordinator's role and function. Thus, for example, a recipient may
designate one employee to coordinate multiple types of anti-
discrimination and diversity efforts, yet the recipient must use the
title ``Title IX Coordinator'' in its notices to students and
employees, on its website, and so forth so that the recipient's
educational community knows who to contact to report sex
discrimination, including sexual harassment.
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Additionally, if a postsecondary institution would like to train
all employees or require all employees to report sexual harassment to
the Title IX Coordinator through policies that these final regulations
do not require, then the postsecondary institution may do so without
fearing that the Department will hold the postsecondary institution
responsible for responding to sexual harassment allegations unless the
recipient's employee actually did give notice to the recipient's Title
IX Coordinator (or to an official with authority).\515\ The Department
revised Sec. 106.30 defining ``actual knowledge'' to expressly state
that the mere ability or obligation to inform a student about how to
report sexual harassment or having been trained to do so will not
qualify an individual as one who has authority to institute corrective
measures on behalf of the recipient. Postsecondary institutions, thus,
may train as many employees as they would like or impose mandatory
reporting requirements on their employees without violating these final
regulations, and may make those training decisions based on what the
recipient believes is in the best interest of the recipient's
educational community. A postsecondary institution's decisions
regarding employee training and mandatory reporting for employees may,
for example, take into account that students at postsecondary
institutions may benefit from knowing they can discuss sexual
harassment experiences with a trusted professor, resident advisor, or
other recipient employee without such a discussion automatically
triggering a report to the Title IX office, or may take into account
whether the postsecondary institution has Clery Act obligations that
require training on reporting obligations for CSAs, or whether the
institution is expected to adhere to NCAA guidelines.
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\515\ As noted by a commenter on behalf of a community college,
this flexibility applies in the postsecondary institution context
regarding how the institution decides to train, or have a mandatory
reporting policy for, all employees who are not the Title IX
Coordinator or an official with authority, such as the institution's
part-time employees or vendors who are independent contractors to
whom the institution has not given authority to institute corrective
measures on behalf of the institution. In the elementary and
secondary school context, this flexibility is more limited, because
the final regulations hold the school responsible for responding
whenever any employee has notice of sexual harassment. However, this
flexibility (to train individuals, or to require individuals to
report sexual harassment to the Title IX Coordinator) still applies
to elementary and secondary school recipients, for example with
respect to independent contractor vendors, or non-employee
volunteers who interact with students.
---------------------------------------------------------------------------
With respect to both elementary and secondary schools as well as
postsecondary institutions, the Department does not limit the manner in
which the recipient may receive notice of sexual harassment. Although
imputation of knowledge based solely on vicarious liability or
constructive notice is insufficient to constitute actual knowledge, a
Title IX Coordinator, an official with authority to institute
corrective measures on behalf of the recipient, and any employee of an
elementary and secondary school may receive notice through an oral
report of sexual harassment by a complainant or anyone else, a written
report, through personal observation, through a newspaper article,
through an anonymous report, or through various other means. The
Department will not permit a recipient to ignore sexual harassment if
the recipient has actual knowledge of such sexual harassment in its
education program or activity against a person in the U.S., and such a
recipient is required to respond to sexual harassment as described in
Sec. 106.44(a).
The Department disagrees with commenters who are concerned that the
actual knowledge requirement would expose recipients to increased
litigation. Because the Department developed the actual knowledge
requirement on the foundation of the Supreme Court's Title IX cases,
the Department disagrees that recipients will be subject to increased
litigation risk by adhering to these final regulations.\516\ Indeed, if
recipients comply with these final regulations, these final regulations
may have the effect of decreasing litigation because recipients with
actual knowledge would be able to demonstrate that they were not
deliberately indifferent in responding to a report of sexual
harassment. Recipients would be able to demonstrate that they offered
supportive measures in response to a report of sexual harassment,
irrespective of whether the complainant chose to file a formal
complaint, and informed the complainant about how to file such a formal
complaint.
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\516\ See the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section, and the
``Litigation Risk'' subsection of the ``Miscellaneous'' section, of
this preamble.
---------------------------------------------------------------------------
The Department has examined these final regulations in light of its
regulations implementing the Clery Act, and has determined that these
final regulations do not create any conflicts with respect to CSAs and
their obligations under the regulations implementing the Clery Act. For
discussion about these final regulations and the regulations
implementing the Clery Act, see the discussion in the ``Clery Act''
subsection of the ``Miscellaneous'' section of this preamble. The
Department is not under an obligation to conform these final
regulations with NCAA compliance guidelines and declines to do so. Any
recipient may give coaches and trainers authority to institute
corrective measures on behalf of the recipient such that notice to
coaches and trainers conveys actual knowledge to the recipient as
defined in Sec. 106.30. Additionally, or alternatively, any recipient
may train coaches and athletic trainers to report notice of sexual
harassment to the recipient's Title IX Coordinator. We reiterate that
as to elementary and secondary schools, notice to a coach or trainer
charges the recipient with actual knowledge, if the coach or trainer is
an employee.
As discussed in the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section of this preamble, the
Supreme Court developed the concept of officials with authority to
institute corrective measures on behalf of the recipient based on the
administrative enforcement requirement in 20 U.S.C. 1682 that an agency
must give notice of a Title IX violation to ``an appropriate person''
affiliated with the recipient before an agency seeks to terminate the
recipient's Federal funding, and that an appropriate official is one
who can make a decision to correct the violation. Whether a person
constitutes an official of the recipient who has authority to institute
corrective measures on behalf of the recipient is a fact-specific
determination \517\ and the
[[Page 30116]]
Department will look to Federal case law applying the Gebser/Davis
framework. Because determining which employees may be officials with
authority'' is fact-specific, the Department focuses administrative
enforcement on (1) requiring every recipient to designate a Title IX
Coordinator, notice to whom the Department deems as conveying actual
knowledge to the recipient, and (2) applying an expanded definition of
actual knowledge in the elementary and secondary school context to
include notice to any school employee. The Department notes that
recipients may, at their discretion, expressly designate specific
employees as officials with authority for purposes of Title IX sexual
harassment, and may inform students of such designations.
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\517\ E.g., Julie Davies, Assessing Institutional Responsibility
for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 425-
26 (2002) (``The requirement of actual notice to a person with
corrective authority is more complex than it appears on its face. A
person who has corrective authority in one sphere, such as a teacher
with regard to students in his class, may lack such authority in
other contexts. While one can understand the potential unfairness to
educational institutions if liability were imposed for failure to
take action when harassing conduct is described in some general
manner to someone who is not in a capacity to evaluate, investigate,
or intercede in any way, courts cannot rely exclusively on a job
description. The legal authority of individuals to receive notice is
clearly relevant and a basis for their inclusion as parties to whom
notice may be given, but courts must also evaluate the factual
reality. Reference to legal power to take the ultimate corrective
action gives an incomplete picture of how power is wielded. The
Court's policy goals permit a construction that is broad and
flexible, both as to what constitutes notice and who is in a
position to take action.'') (internal citations omitted); Brian
Bardwell, No One is an Inappropriate Person: The Mistaken
Application of Gebser's ``Appropriate Person'' Test to Title IX
Peer-Harassment Cases, 68 Case W. Res. L. Rev. 1343, 1356-64 (2018)
(analyzing case law applying the ``official with authority''
standard and noting that some courts focus on whether the
``appropriate person'' to whom sexual harassment was reported had
authority to discipline the harasser, or the authority to remediate
the situation for the victim, or both types of authority, and
arguing that only a broader interpretation of an ``appropriate
person'' serves the goals of Title IX, such that any school employee
authorized to ``take action to ensure that a victim continues to
enjoy the full benefits of her [or his] education, despite having
been harassed or assaulted'' should be deemed authority to institute
``corrective action'' and satisfy the Gebser actual knowledge
condition). The final regulations essentially take this broader
approach in the elementary and secondary school context, where
notice to any employee charges the school with actual knowledge, but
in the postsecondary institution context leaves institutions
flexibility to choose the officials to whom the institution grants
authority to institute corrective measures on the recipient's
behalf. Recognizing that case law under the Gebser/Davis framework
has taken different approaches to what constitutes ``corrective
action'' the final regulations emphasize a recipient's obligation to
ensure that its entire educational community knows how to readily,
accessibly report sexual harassment to the Title IX Coordinator.
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Changes: The Department revised Sec. 106.30 to expressly state
that the mere ability or obligation to inform a student about how to
report sexual harassment or having been trained to do so will not
qualify an individual as one who has authority to institute corrective
measures on behalf of the recipient.
Elementary and Secondary Schools
Comments: Many commenters expressed concerns about how the Sec.
106.30 definition of ``actual knowledge'' will apply to students at
elementary and secondary schools. Commenters asserted that elementary
and secondary school students suffer a particular harm when adult
employees prey upon them, and those same adults can pressure those
students to stay silent. Some commenters asserted that the proposed
rules conflict with robust State laws and regulations that require
mandatory reporting of suspected child abuse or domestic violence.
Several commenters characterized the actual knowledge requirement as
dramatically narrowing the scope of elementary and secondary school
employees' obligation to respond to sexual harassment by using an
actual knowledge requirement instead of a constructive notice
requirement. These commenters contended that the proposed rules' actual
knowledge requirement would harm children because it would exclude
school district personnel who regularly interact with students,
including school principals, paraeducators, school counselors, coaches,
school bus drivers, and others, from the group of officials to whom
notice charges the school with actual knowledge.
Discussion: The Department is persuaded that students in elementary
and secondary schools who are typically younger than students in
postsecondary institutions must be able to report sexual harassment to
an employee other than a teacher, Title IX Coordinator, or official
with authority, to trigger the school's mandatory response obligations.
We agree that it is unreasonable to expect young children to seek out
specific employees for the purpose of disclosing Title IX sexual
harassment. Elementary and secondary school employees other than the
Title IX Coordinator, teachers, or officials with authority may observe
or witness sexual harassment or have notice of sexual harassment
through other means such as a third-party report, and we agree that in
the elementary and secondary school context such notice must trigger
the school's mandatory response obligations because otherwise, a young
complainant may not be offered supportive measures or know of the
option to file a formal complaint that initiates a grievance process
against the respondent. Further, we recognize that in the elementary
and secondary school context, a young student's ability to make
decisions regarding appropriate supportive measures, or about whether
to file a formal complaint, would be impeded without the involvement of
a parent or guardian who has the legal authority to act on the
student's behalf. Accordingly, the Department expands the definition of
actual knowledge in Sec. 106.30 to include ``any employee of an
elementary and secondary school'' and adds Sec. 106.6(g) expressly
recognizing the legal rights of parents and guardians to act on behalf
of a complainant (or respondent) in any Title IX matter. While the
imputation of knowledge based solely on the theories of vicarious
liability or constructive notice is insufficient, notice of sexual
harassment to elementary and secondary school employees, who may
include school principals, teachers, school counselors, coaches, school
bus drivers, and all other employees, will obligate the recipient to
respond to Title IX sexual harassment.
The actual knowledge requirement is not satisfied when the only
official or employee of the recipient with actual knowledge of the
harassment is the respondent, because the recipient will not have
opportunity to appropriately respond if the only official or employee
who knows is the respondent. We understand that in some situations, a
school employee may perpetrate sexual harassment against a student and
then pressure the complainant to stay silent, and that if the
complainant does not disclose the misconduct to anyone other than the
employee-perpetrator, this provision means that the school is not
obligated to respond. However, if the complainant tells another school
employee about the misconduct, the school is charged with actual
knowledge and must respond. Further, if the complainant tells a parent,
or a friend, or a trusted adult in the complainant's life, that third
party has the right to report sexual harassment to the school's Title
IX Coordinator, obligating the school to promptly respond, even if that
third party has no affiliation with the school.\518\
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\518\ Section 106.8(a) (emphasizing that ``any person'' may
report sexual harassment to the Title IX Coordinator).
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As previously explained in the ``Employees' Obligations''
subsection of this ``Actual Knowledge'' section, the definition of
actual knowledge in these final regulations does not necessarily narrow
the scope of an elementary or secondary school's obligation to respond
to Title IX sexual harassment as compared to the approach taken in
Department guidance. Under the 2001 Guidance, a school had ``notice if
a responsible employee `knew or in the exercise of reasonable care
should have
[[Page 30117]]
known,' about the harassment.'' \519\ Responsible employees, however,
did not include all employees. Under these final regulations, notice of
sexual harassment or allegations of sexual harassment to any employee
of an elementary or secondary school charges the recipient with actual
knowledge to the elementary or secondary school and triggers the
recipient's obligation to respond. The Department's revised definition
of actual knowledge with respect to elementary and secondary schools,
thus, arguably broadens and does not narrow an elementary or secondary
school's obligation to respond to Title IX sexual harassment compared
to the approach taken in Department guidance.
---------------------------------------------------------------------------
\519\ 2001 Guidance at 13.
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The Department recognizes that most State laws require elementary
and secondary school employees to report sexual harassment when it
constitutes a form of child abuse. Even though the Department is not
required to align these Federal regulations with mandatory reporter
requirements in State laws, the Department chooses to do so in the
context of elementary and secondary schools. The Department's prior
guidance did not require an elementary or secondary school to respond
to Title IX sexual harassment when any employee had notice of Title IX
sexual harassment.\520\ These final regulations do so. The Department
acknowledges that State laws may exceed the requirements in these final
regulations as long as State laws do not conflict with these final
regulations as explained more fully in the ``Section 106.6(h)
Preemptive Effect'' subsection of the ``Clarifying Amendments to
Existing Regulations'' section of this preamble. Commenters have not
identified a conflict with respect to the actual knowledge definition
in Sec. 106.30, and any State law, in the context of elementary and
secondary schools.
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\520\ Id.
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Changes: The Department revised Sec. 106.30 to specify that notice
of sexual harassment to any employee of an elementary and secondary
school constitutes actual knowledge to the recipient, and triggers the
recipient's obligation to respond to sexual harassment.
Large Schools
Comments: Multiple commenters asserted that students at large
institutions--such as schools with more than one campus or with
enrollments over 5,000 students--are disadvantaged by the actual
knowledge requirement because students will be required to seek out a
single administrator (the Title IX Coordinator) whose office may be
located on a different campus or in another zip code and who has
responsibilities for tens of thousands of other students, faculty, and
staff.
Several commenters also questioned how the proposed rules,
including the actual knowledge definition in Sec. 106.30, will burden
Title IX Coordinators. Commenters asserted that the requirement for
actual knowledge will significantly burden Title IX Coordinators who
must now receive and process all sexual harassment and assault reports.
Commenters expressed concern that for larger campuses, this could
overwhelm an already overtaxed position on campuses, cause higher
turnover rates for the position of Title IX Coordinator, and result in
ineffective administration of Title IX. Many commenters argued that the
proposed rules, and their focus on the Title IX Coordinator's
responsibilities, would add to schools' overall administrative burdens.
Discussion: The Department's regulatory authority under Title IX
extends to recipients of Federal financial assistance which operate
education programs or activities.\521\ Requirements such as designation
of a Title IX Coordinator therefore apply to each ``recipient,'' for
example to a school district, or to a university system, regardless of
the recipient's size in terms of student enrollment or number of
schools or campuses. Title IX's non-discrimination mandate extends to
every recipient's education programs or activities.\522\ These final
regulations at Sec. 106.8(a), similar to current 34 CFR 106.9, require
recipients to designate ``at least one'' employee to serve as a Title
IX Coordinator. As the Department has recognized in guidance
documents,\523\ some recipients serve so many students, or find it
administratively convenient for other reasons, that the recipient may
need to or wish to designate multiple employees as Title IX
Coordinators, or designate a Title IX Coordinator and additional staff
to serve as deputy Title IX Coordinators, or take other administrative
steps to ensure that the Title IX Coordinator can adequately fulfill
the recipient's Title IX obligations, including all obligations imposed
under these final regulations. The Department is sensitive to the
financial and resource challenges faced by many recipients, the
Department's responsibility is to regulate in a manner that best
effectuates the purposes of Title IX, to prevent recipients that allow
discrimination on the basis of sex from receiving Federal financial
assistance, and to provide individuals with effective protections
against discriminatory practices.\524\ The Department is aware that
many recipients face high turnover rates with respect to the Title IX
Coordinator position \525\ and that some recipients struggle to
understand the critical role that Title IX Coordinators need to have in
fulfilling a recipient's Title IX responsibilities. However, the
Department intends through these final regulations to further stress
the critical role of each recipient's Title IX Coordinator, a role that
is emphasized
[[Page 30118]]
throughout the final regulations \526\ in ways that the Department is
aware will require recipients to carefully ``designate and authorize''
Title IX Coordinators. The Department revised Sec. 106.8(a) to require
a recipient to give the Title IX Coordinator authority (i.e.,
authorize) to meet specific responsibilities as well as to coordinate
the recipient's overall efforts to comply with Title IX and these final
regulations. The Department believes this emphasis on the need for
recipients to rely heavily on Title IX Coordinators to fulfill
recipient's obligations will result in more recipients effectively
responding to Title IX sexual harassment because recipients will be
incentivized to properly train and authorize qualified individuals to
serve this important function. The Department understands some
commenters' concerns that Title IX Coordinators will be burdened by,
and that recipients will face administrative burdens under, these final
regulations, but the Department believes that the obligations in these
final regulations are the most effective way to effectuate Title IX's
non-discrimination mandate, and believes that the function of a Title
IX Coordinator is necessary to increase the likelihood that recipients
will fulfill those obligations. At the same time, the Department will
not impose a requirement on recipients to designate multiple Title IX
Coordinators, so that recipients devote their resources in the most
effective and efficient manner. If a recipient needs more than one
Title IX Coordinator in order to meet the recipient's Title IX
obligations, the recipient will take that administrative step, but the
Department declines to assume the conditions under which a recipient
needs more than one Title IX Coordinator in order to meet the
recipient's Title IX obligations.
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\521\ 20 U.S.C. 1681(a) (referring to any education program or
activity that receives Federal financial assistance); 34 CFR
106.2(i) (defining ``recipient'' to mean ``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'').
\522\ See 20 U.S.C. 1687 (defining ``program or activity''); 34
CFR 106.2(h) (defining ``program or activity'').
\523\ E.g., 2001 Guidance at 21 (``Because it is possible that
an employee designated to handle Title IX complaints may himself or
herself engage in harassment, a school may want to designate more
than one employee to be responsible for handling complaints in order
to ensure that students have an effective means of reporting
harassment.''); 2011 Dear Colleague Letter at 7 (stating that each
recipient must designate one Title IX Coordinator but may designate
more than one). The Department's Title IX implementing regulations
have, since 1975, required each recipient to designate at least one
employee to coordinate the recipient's efforts to comply with Title
IX. 34 CFR 106.8(a). These final regulations are thus consistent
with current regulations and with all past Department guidance on
this matter, but impose new legal obligations on recipients to, for
example, include an email address for the Title IX Coordinator and
require all the contact information for the Title IX Coordinator to
be posted on the recipient's website. Sec. 106.8.
\524\ See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 704
(1979) (describing the purposes of Title IX).
\525\ E.g., Sarah Brown, Life Inside the Title IX Pressure
Cooker, Chronicle of Higher Education (Sept. 5, 2019) (``Nationwide,
the administrators who are in charge of dealing with campus sexual
assault and harassment are turning over fast. Many colleges have had
three, four, or even five different Title IX coordinators in the
recent era of heightened enforcement, which began eight years ago.
Two-thirds of Title IX coordinators say they've been in their jobs
for less than three years, according to a 2018 survey by the
Association of Title IX Administrators, or ATIXA, the field's
national membership group. One-fifth have held their positions for
less than a year.''); Jacquelyn D. Wiersma-Mosley & James DiLoreto,
The Role of Title IX Coordinators on College and University
Campuses, 8 Behavioral. Sci. 4 (2018) (finding that most Title IX
Coordinators have fewer than three years of experience, and
approximately two-thirds are employed in positions in addition to
serving as the Title IX Coordinator).
\526\ E.g., Sec. 106.8(a) (stating recipients now must not only
designate, but also ``authorize'' a Title IX Coordinator, and must
notify students and employees (and others) of the Title IX
Coordinator's contact information); Sec. 106.8(b)(2) (requiring a
recipient to post contact information for any Title IX Coordinators
on the recipient's website); Sec. 106.30 (defining ``actual
knowledge'' and stating notice to a Title IX Coordinator gives the
recipient actual knowledge and ``notice'' includes but is not
limited to a report to the Title IX Coordinator as described in
Sec. 106.8(a)); Sec. 106.30 (defining ``formal complaint'' and
stating a Title IX Coordinator may sign a formal complaint
initiating a Sec. 106.45 grievance process); Sec. 106.44(a)
(stating the Title IX Coordinator must contact each complainant to
discuss the availability of supportive measures); Sec. 106.30
(defining ``supportive measures'' and mandating that Title IX
Coordinators are responsible for effective implementation of
supportive measures); Sec. 106.45(b)(1)(iii) (stating Title IX
Coordinators must be free from conflicts of interest and bias, and
must be trained on, among other things, how to serve impartially);
Sec. 106.45(b)(3)(ii) (stating a complainant may notify the Title
IX Coordinator that the complainant wishes to withdraw a formal
complaint); Sec. 106.45(b)(7)(iv) (mandating that Title IX
Coordinators are responsible for the effective implementation of
remedies).
---------------------------------------------------------------------------
Because of the crucial role of Title IX Coordinators, the final
regulations update and strengthen the requirements that recipients
notify students, employees, parents of elementary and secondary school
students, and others, of the Title IX Coordinator's contact information
and about how to make a report or file a formal complaint.\527\ In
further response to commenters' concerns that students may not know how
to contact a Title IX Coordinator, the final regulations require the
Title IX Coordinator's contact information (which must include an
office address, telephone number, and email address) to be posted on
recipients' websites,\528\ expressly state that any person may report
sexual harassment using the listed contact information for the Title IX
Coordinator or any other means that results in the Title IX Coordinator
receiving the person's verbal or written report, specify that such a
report may be made ``at any time (including during non-business
hours)'' using the Title IX Coordinator's listed telephone number or
email address.\529\ The final regulations also revise the definition of
``formal complaint'' to specify that a formal complaint may be filed in
person, by mail, or by email using the listed contact information for
the Title IX Coordinator.\530\ The Department's intent is to increase
the likelihood that students and employees know how to contact, and
receive supportive measures and accurate information from, a trained
Title IX Coordinator.\531\ Requiring the contact information for a
Title IX Coordinator to include an office address, email address, and
telephone number pursuant to Sec. 106.8(a) obviates some commenters'
concerns that complainants will need to travel to physically report in
person or face-to-face with a Title IX Coordinator.\532\ Thus, even if
the recipient's Title IX Coordinator is located on a different campus
from the student or in an administrative building outside the school
building where a student attends classes, any person may report to the
Title IX Coordinator using the Title IX Coordinator's listed contact
information, providing accessible reporting options.\533\ The
Department believes these requirements concerning a Title IX
Coordinator are sufficient to hold recipients accountable for complying
with these final regulations, while leaving recipients flexibility to
decide, in a recipient's discretion, whether designation of multiple
Title IX Coordinators, or deputy Title IX Coordinators, might be
necessary and where any Title IX office(s) should be located, given a
recipient's needs in terms of enrollment, geographic campus locations,
and other factors.
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\527\ E.g., Sec. 106.8(a); Sec. 106.8(c). These requirements
apply specifically to reports and formal complaints of sexual
harassment, but also apply to reports and complaints of non-sexual
harassment forms of sex discrimination.
\528\ Section 106.8(b)(2).
\529\ Section 106.8(a).
\530\ Section 106.30 (defining ``formal complaint'').
\531\ Section 106.45(b)(1)(iii) (describing required training
for Title IX Coordinators and other Title IX personnel).
\532\ This requirement also mirrors the requirement (updated to
include modern communication via email) in the 2001 Guidance that
the ``school must notify all of its students and employees of the
name, office address, and telephone number of the employee or
employees designated'' to coordinate its efforts to comply with and
carry out its Title IX responsibilities. 2001 Guidance at 21.
\533\ For additional accessibility and ease of reporting,
revised Sec. 106.8(a) further states that any person may report at
any time (including during non-business hours) by using the
telephone number or email address, or by mail to the office address,
listed for the Title IX Coordinator.
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Changes: Section 106.8(a) is revised to require that recipients
must not only designate, but also ``authorize'' a Title IX Coordinator
to coordinate the recipient's Title IX obligations. This provision is
also revised to require recipients to notify students, employees,
parents of elementary and secondary school students, and others, of the
Title IX Coordinator's contact information including office address,
telephone number, and electronic mail address and to state that any
person may report to the Title IX Coordinator using the contact
information listed for the Title IX Coordinator (or any other means
that results in the Title IX Coordinator receiving the person's verbal
or written report). This provision is also revised to state that a
report may be made at any time (including during non-business hours) by
using the telephone number or email address or by mail to the office
address, listed for the Title IX Coordinator. Section 106.8(b)(2) is
revised to require the contact information for Title IX Coordinator(s)
to be prominently displayed on the recipient's website and in each of
the recipient's handbooks or catalogs.
Miscellaneous Comments and Questions
Comments: One commenter recommended that the final sentence of
Sec. 106.30 be deleted, and that the word ``apparent'' be inserted
before ``authority'' in the first sentence of the same provision.
One commenter asked whether a Title IX Coordinator can initiate a
grievance process in the absence of a signed
[[Page 30119]]
complaint (for example, when evidence is readily available and/or an
ongoing threat to campus exists). The same commenter also asked whether
the Title IX Coordinator may serve as a complainant or whether such a
case must proceed outside the Title IX process.
Several commenters asked whether the Department would provide
training recommendations dedicated to addressing a responsible
employee's obligation to respond to sexual assault reports. Some of
these commenters also asked whether the Department would provide
guidance on disseminating this information to students.
One commenter recommended adding to the final regulations a
statement that meeting with confidential resources on campus, such as
organizational ombudspersons who comply with industry standards of
practice and codes of ethics, does not constitute notice conveying
actual knowledge to a recipient. The commenter reasoned that
organizational ombudspersons are not ``responsible employees'' under
the Department's current guidance, and that to ensure that
organizational ombudspersons continue to be a valuable resource
providing informal, confidential services to complainants and
respondents, the final regulations should note that organizational
ombudspersons are a confidential resource exempt from the categories of
persons to whom notice charges a recipient with actual knowledge.
Discussion: The Department declines to follow a commenter's
suggestion to delete the sentence of Sec. 106.30 \534\ concerning
reporting obligations and training, or to insert the word ``apparent''
before the word ``authority'' in the first sentence of Sec.
106.30.\535\ The framework for holding a recipient responsible for the
recipient's response to peer-on-peer or employee-on-student sexual
harassment adopted in the final regulations is the Gebser/Davis
condition of actual knowledge, adapted as the Department has deemed
reasonable for the administrative enforcement context with differences
in elementary and secondary schools, and postsecondary institutions.
The sentence of the actual knowledge definition regarding reporting
obligations represents a proposition applied by Federal courts under
the Supreme Court's Gebser/Davis framework.\536\ If an employee's mere
ability or obligation to report ``up'' the employee's supervisory chain
were sufficient to qualify that employee as an ``official with
authority to institute corrective measures,'' then the rationale
underlying actual knowledge would be undercut because virtually every
employee might have the ``ability'' to report ``up.'' \537\ For the
reasons described above and in the ``Actual Knowledge'' subsection of
the ``Adoption and Adaption of the Supreme Court's Framework to Address
Sexual Harassment'' section of this preamble, the Department believes
that administrative enforcement of Title IX's non-discrimination
mandate is best served by distinguishing between elementary and
secondary schools (where notice to any employee triggers a recipient's
response obligations) and postsecondary institutions (where notice to
the Title IX Coordinator or officials with authority triggers a
recipient's response obligations).
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\534\ The last sentence of Sec. 106.30 defining ``actual
knowledge'' to which a commenter referred, is now the second to last
sentence in that section in the final regulations and provides:
``The mere ability or obligation to report sexual harassment or to
inform a student about how to report sexual harassment, or having
been trained to do so, does not qualify an individual as one who has
authority to institute corrective measures on behalf of the
recipient.'' (Emphasis added. The italicized portions in this
quotation have been added in the final regulations.).
\535\ The first sentence of Sec. 106.30, defining ``actual
knowledge'' in the final regulations, provides: ``Actual knowledge
means notice of sexual harassment or allegations of sexual
harassment to a recipient's Title IX Coordinator or any official of
the recipient who has authority to institute corrective measures on
behalf of the recipient, or to any employee of an elementary and
secondary school.'' (Emphasis added. The italicized portions in this
quotation have been added in the final regulations.).
\536\ Davis, 526 U.S. at 646-48, Gebser, 524 U.S. at 289-91.
\537\ See id.
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As explained above, the final sentence in Sec. 106.30 does not
have as much applicability for recipients that are elementary and
secondary schools under the final regulations due to the Department's
expanded definition of actual knowledge in that context to include
notice to any school employee. As explained in the ``Employees'
Obligations'' subsection of this ``Actual Knowledge'' section, we have
revised the final sentence in Sec. 106.30 to expressly state that the
mere ability or obligation to report sexual harassment or to inform a
student about how to report sexual harassment, or having been trained
to do so, does not qualify an individual as one who has authority to
institute corrective measures on behalf of the recipient. Accordingly,
elementary and secondary schools may choose to train non-employees such
as volunteers about how to report sexual harassment or require
volunteers to do so even though these final requirements do not impose
such a requirement, and such schools would not face expanded Title IX
liability by doing so. Similarly, a postsecondary institution may
choose to require all employees to report sexual harassment or to
inform a student about how to report sexual harassment, or train all
employees to do so, without fearing adverse repercussions from the
Department. Recipients might not be willing to engage in training or
impose reporting requirements that these final regulations do not
impose, if doing so would cause the recipient to incur additional
liability.
Pursuant to Sec. 106.8, the burden is on the recipient to
designate a Title IX Coordinator, and the definition of ``actual
knowledge'' in revised Sec. 106.30 clearly provides that notice of
sexual harassment or allegations of sexual harassment to a recipient's
Title IX Coordinator constitutes actual knowledge, which triggers a
recipient's obligation to respond to sexual harassment. The recipient
must notify all its students, employees, and others of the name or
title, office address, email address, and telephone number of the
employee or employees designated as the Title IX Coordinator (and post
that contact information on its website), under Sec. 106.8.
Accordingly, all students and employees have clear, accessible channels
through which to make a report of sexual harassment such that a
recipient is obligated to respond to that report. Additionally, notice
to other officials who have the authority to institute corrective
measures on behalf of the recipient will convey actual knowledge to a
recipient, and a recipient may choose to identify such officials by
providing a list of such officials to students and employees. The level
of authority that a person may have to take corrective measures is
generally known to students and employees. For example, employees
generally know that a supervisor but not a co-worker has authority to
institute corrective measures. Similarly, a student in a postsecondary
institution likely understands that deans generally have the authority
to institute corrective measures. Students in elementary and secondary
schools may report sexual harassment or allegations of sexual
harassment to any employee. Students in postsecondary institutions can
always report sexual harassment to the Title IX Coordinator.
For reasons discussed in the ``Formal Complaint'' subsection of the
``Section 106.30 Definitions'' section of this preamble, the final
regulations retain the discretion of a Title IX Coordinator to sign a
formal complaint initiating a grievance process against a respondent,
but the final regulations clarify that in such situations, the Title IX
Coordinator
[[Page 30120]]
is not a complainant or otherwise a party to the grievance
process.\538\ The Department believes this preserves the ability of a
recipient to utilize the Sec. 106.45 grievance process when safety or
similar concerns lead a recipient to conclude that a non-deliberately
indifferent response to actual knowledge of Title IX sexual harassment
may require the recipient to investigate and potentially sanction a
respondent in situations where the complainant does not wish to file a
formal complaint.
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\538\ Section 106.30 (defining ``formal complaint'' by stating
that a formal complaint may be filed by a complainant or signed by a
Title IX Coordinator, and adding language providing that where a
Title IX Coordinator signs a formal complaint, the Title IX
Coordinator is not a complainant or otherwise a party in the
grievance process, and must remain free from conflicts of interest
and bias).
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Although the Department recognizes that recipients may desire
guidance on training (particularly now that the final regulations in
Sec. 106.45(b)(10)(i)(D) require the recipients to publish all
training materials on recipient websites), the Department declines to
recommend certain training practices or techniques aside from the
requirements of Sec. 106.45(b)(1)(iii),\539\ leaving flexibility to
recipients to determine how to meet training requirements in a manner
that best fits the recipient's unique educational community. Regarding
the dissemination of information to students, the Department notes that
Sec. 106.8 requires recipients to notify students and employees of the
recipient's policy of non-discrimination under Title IX, the Title IX
Coordinator's contact information, and information about how to report
and file complaints of sex discrimination and how to report and file
formal complaints of sexual harassment.
---------------------------------------------------------------------------
\539\ Section 106.45(b)(1)(iii) (requiring training of Title IX
Coordinators, investigators, decision-makers, and any person who
facilitates informal resolution processes).
---------------------------------------------------------------------------
The Department appreciates the opportunity to emphasize that
whether a person affiliated with a recipient, such as an organizational
ombudsperson, is or is not an ``official with authority to institute
corrective measures'' requires a fact-specific inquiry, and understands
the commenter's assertion that an organizational ombudsperson adhering
to industry standards and codes of ethics should be deemed
categorically a ``confidential resource'' and not an official with
authority. The Department encourages postsecondary institution
recipients to examine campus resources such as organizational
ombudspersons and determine whether, given how such ombudspersons work
within a particular recipient's system, such ombudspersons are or are
not officials with authority to take corrective measures so that
students and employees know with greater certainty the persons to whom
parties can discuss matters confidentially without such discussion
triggering a recipient's obligation to respond to sexual harassment. We
note that with respect to elementary and secondary schools, notice to
any employee, including an ombudsperson, triggers the recipient's
response obligations.
Changes: None.
Complainant
Comments: A few commenters supported the proposed rules' definition
of ``complainant'' in Sec. 106.30 as an appropriate, sensible
definition. Commenters asserted that using neutral terms like
``complainant'' and ``respondent'' avoids injecting bias generated by
referring to anyone who makes an allegation as a ``victim.'' One
commenter asserted that labeling an accuser a ``victim'' before there
has been any investigation or adjudication turns the principle of
innocent until proven guilty on its head.\540\
---------------------------------------------------------------------------
\540\ Commenter cited: Doe v. Brandeis Univ., 177 F. Supp. 3d
561, 573 (D. Mass. 2016) (``Whether someone is a `victim' is a
conclusion to be reached at the end of a fair process, not an
assumption to be made at the beginning.'').
---------------------------------------------------------------------------
In contrast, many commenters urged the Department to use a term
such as ``reporting party'' instead of ``complainant.'' Commenters
argued that ``complainant'' suggests that a person is making a
complaint (as opposed to reporting), or that the term ``complainant''
suggests a negative connotation that a person is ``complaining'' about
discrimination which could create a barrier to reporting, and that
``reporting party'' is current, best practice terminology that better
avoids bias and negative implications that a person is ``complaining.''
One commenter asserted that the Clery Act uses the term ``victim''
throughout its statute and regulations and asked why the Sec. 106.30
definition of ``complainant'' uses the word victim without referring to
that person as a victim throughout the proposed regulations.
Some commenters asserted that the definition of complainant
unfairly excluded third parties (non-victims, such as bystanders or
witnesses to sexual harassment) from reporting sexual harassment
because the definition of complainant referred to an individual ``who
has reported being the victim'' and because the definition also stated
that the person to whom the individual has reported must be the Title
IX Coordinator or other person to whom notice constitutes actual
knowledge. Commenters argued that in order to further Title IX's non-
discrimination mandate, a school must be required to respond to sexual
harassment regardless of who has reported it and regardless of the
school employee to whom a person reports. Commenters argued that if the
survivor is the only person who can be a complainant, even fewer sexual
assaults will be reported, and that third-party intervention can save
lives and educational opportunities.\541\ Commenters argued that some
students are non-verbal due to young age, disability, language
barriers, or severe trauma, and the definition of complainant would
exclude these students because these students are incapable of being
the individual ``who has reported being the victim.'' Commenters argued
that Federal courts have held schools liable for deliberate
indifference to third-party reports of sexual harassment and the
proposed rules should not set a lower threshold by excusing schools
from responding to reports that come from anyone other than the
victim.\542\ Commenters asserted that the definition of complainant
should be modified to include parents of minor students, or parents of
students with disabilities. A few commenters supported the definition
of complainant believing that the definition appropriately excluded
third-party reporting; these commenters argued that a school should
only respond to alleged sexual harassment where the victim has
personally reported the conduct.
---------------------------------------------------------------------------
\541\ Commenters cited: Jackson v. Birmingham Bd. of Educ., 544
U.S. 167, 180 (2005) (``teachers and coaches . . . are often in the
best position to vindicate the rights of their students because they
are better able to identify discrimination and bring it to the
attention of administrators. Indeed, sometimes adult employees are
`the only effective adversar[ies]' of discrimination in schools.'')
(internal citation omitted; brackets in original).
\542\ Id.
---------------------------------------------------------------------------
Some commenters suggested changing the definition of complainant to
a person who has reported being ``the victim of sex-based
discriminatory conduct'' instead of a person who has reporting being
the victim of ``sexual harassment,'' arguing that the general public
understands sexual harassment to be broader than how ``sexual
harassment'' is defined in Sec. 106.30 and these regulations should
only apply to sex discrimination under Title IX.
One commenter asserted that the phrase ``or on whose behalf the
Title IX Coordinator has filed a formal complaint'' in the definition
of ``complainant'' created confusion because proposed Sec.
106.44(b)(2)
[[Page 30121]]
required a Title IX Coordinator to file a formal complaint upon
receiving multiple reports against a respondent, but that proposed
provision did not indicate on which complainant's behalf such a formal
complaint would be filed.
Discussion: The Department appreciates commenters' support for the
proposed definition of ``complainant'' in Sec. 106.30 as a sensible,
neutral term to describe a person alleged to be the victim of sexual
harassment. We appreciate commenters who asserted that ``reporting
party'' would be a preferable term due to concerns that ``complainant''
suggests that the person has filed a complaint (as opposed to having
reported conduct), or that there is a negative connotation to the word
``complainant'' suggesting that the person is complaining about
discrimination. The Department does not disagree that a term such as
``reporting party'' could be an appropriate equivalent term for
``complainant'' in terms of neutrality; however, the Department
believes that both terms reflect the neutral, impartial intent of
describing a person who is an alleged victim but a fair process has not
yet factually determined whether the person was victimized. Further,
the final regulations ensure that a person must be treated as a
``complainant'' any time such a person has been alleged to be the
victim of sexual harassment; ``reporting party'' would imply that the
alleged victim themselves had to be the person who reported. The
Department retains the word ``complainant'' in these final regulations,
instead of using ``reporting party,'' also to avoid potential confusion
with respect to the phrase ``reporting party,'' and the use throughout
the final regulations of the word ``party'' to refer to either a
complainant or respondent, and also to reinforce that a recipient must
treat a person as a complainant (i.e., an alleged victim) no matter who
reported to the school that the alleged victim may have suffered
conduct that may constitute sexual harassment. We believe that the
context of the final regulations makes it clear that a ``complainant''
(as the definition states in the final regulations) is a person who is
alleged to be the victim of sexual harassment irrespective of whether a
formal complaint has been filed. The Department notes that
``complainant'' and ``complaint'' are commonly used terms in various
proceedings designed to resolve disputed allegations without
pejoratively implying that a person is unjustifiably ``complaining''
about something but instead neutrally describing that the person has
brought allegations or charges of some kind.\543\ While the definition
of ``complainant'' uses the word ``victim'' to refer to the complainant
as a person alleged to be the victim of sexual harassment, we do not
use the word victim throughout the final regulations because the word
``victim'' suggests a factual determination that a person has been
victimized by the conduct alleged, and that conclusion cannot be made
unless a fair process has reached that determination. We acknowledge
that the Clery Act uses the word ``victim'' throughout that statute and
regulations, but we believe the term ``complainant'' more neutrally,
accurately describes a person who is allegedly a victim without
suggesting that the facts of the situation have been prejudged.
---------------------------------------------------------------------------
\543\ For example, OCR refers to a ``complainant'' as a person
who files a ``complaint'' with OCR, alleging a civil rights law
violation. E.g., U.S. Dep't. of Education, Office for Civil Rights,
How the Office for Civil Rights Handles Complaints (Nov. 2018),
https://www2.ed.gov/about/offices/list/ocr/complaints-how.html.
---------------------------------------------------------------------------
The proposed definition of complainant did not prevent third-party
reporting, and while the final regulations revise the Sec. 106.30
definition of complainant, the final regulations also do not prevent
third-party reporting. Under both the proposed and final regulations,
any person (i.e., the victim of alleged sexual harassment, a bystander,
a witness, a friend, or any other person) may report sexual harassment
and trigger a recipient's obligation to respond to the sexual
harassment.\544\ Nothing in the final regulations requires an alleged
victim to be the person who reports; any person may report that another
person has been sexually harassed.
---------------------------------------------------------------------------
\544\ Section 106.44(a) (stating that a recipient with actual
knowledge of sexual harassment in the recipient's education program
or activity against a person in the United States must respond
promptly and in a manner that is not clearly unreasonable in light
of the known circumstances, including by offering supportive
measures to the complainant, informing the complainant of the
availability of supportive measures with or without the filing of a
formal complaint, considering the complainant's wishes with respect
to supportive measures, and explaining to the complainant how to
file a formal complaint).
---------------------------------------------------------------------------
We agree that third party reporting of sexual harassment promotes
Title IX's non-discrimination mandate. In response to commenters'
concerns, we have revised Sec. 106.8(a) to expressly state that ``any
person'' may report sexual harassment ``whether or not the person
reporting is the person alleged to be the victim'' by using the Title
IX Coordinator's listed contact information. Further, such a report may
be made at any time including during non-business hours, using the
telephone number or email address (or by mail to the office address)
listed for the Title IX Coordinator. We have also revised Sec. 106.30
defining ``actual knowledge'' to expressly state that ``notice''
triggering a recipient's response obligations includes reporting to the
Title IX Coordinator as described in Sec. 106.8(a). The intent of
these final regulations is to ensure that any person (whether that
person is the alleged victim, or anyone else) has clear, accessible
channels for reporting sexual harassment to trigger a recipient's
response obligations (which include promptly offering supportive
measures to the person alleged to be the victim). While any person
(including third parties) can report, the person to whom notice (i.e.,
a report) of sexual harassment is given must be the Title IX
Coordinator or official with authority to take corrective action, or
any employee in the elementary and secondary school context, in order
to trigger the recipient's response obligations--but any person can
report.\545\ The benefits of third-party reporting do not, however,
require the third party themselves to become the ``complainant''
because, for example, supportive measures must be offered to the
alleged victim, not to the third party who reported the complainant's
alleged victimization. Similarly, while we agree that where a parent or
guardian has a legal right to act on behalf of an individual, the
parent or guardian must be allowed to report the individual's
victimization (and to make other decisions on behalf of the individual,
such as considering which supportive measures would be
[[Page 30122]]
desirable and whether to exercise the option of filing a formal
complaint), in such a situation the parent or guardian does not,
themselves, become the complainant; rather, the parent or guardian acts
on behalf of the complainant (i.e., the individual allegedly victimized
by sexual harassment). We have added Sec. 106.6(g) to expressly
acknowledge the legal rights of parents or guardians to act on behalf
of a complainant (or any other individual with respect to exercising
Title IX rights).
---------------------------------------------------------------------------
\545\ For reasons explained in the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment''
section, and the ``Actual Knowledge'' subsection of the ``Section
106.30 Definitions'' section, of this preamble, the final
regulations expand the definition of actual knowledge in the
elementary and secondary school context, but the final regulations
retain the requirement that a recipient must have actual knowledge
of sexual harassment in order to be required to respond. We have
revised the definition of actual knowledge to state expressly that
notice conveying actual knowledge includes, but is not limited to,
reporting sexual harassment to the Title IX Coordinator as described
in Sec. 106.8(a). We have revised Sec. 106.8(a) to expressly state
that any person may report sexual harassment (whether or not the
person reporting is the person alleged to be the victim of sexual
harassment, or is a third party) by using the contact information
for the Title IX Coordinator (which must include an office address,
telephone number, and email address), and stating that a report may
be made at any time (including during non-business hours) by using
the Title IX Coordinator's listed telephone number or email address
(or by mailing to the listed office address). Thus, any person
(including a non-victim third party) may report sexual harassment,
but in order to trigger a recipient's response obligations the
report must give notice to a Title IX Coordinator or to an official
with authority to institute corrective measures, or to any employee
in the elementary and secondary school context.
---------------------------------------------------------------------------
We agree with commenters that allowing third-party reporting is
necessary to further Title IX's non-discrimination mandate for a
variety of reasons, including, as commenters asserted, that some
complainants (i.e., alleged victims) cannot verbalize their own
experience or report it (whether verbally or in writing) yet when
parents, bystanders, witnesses, teachers, friends, or other third
parties report sexual harassment to a person to whom notice charges the
recipient with actual knowledge, then the recipient must be obligated
to respond. In response to commenters' confusion as to whether the
proposed definition of complainant in Sec. 106.30 allowed or
prohibited third-party reporting, and in agreement with commenters'
assertions that third-party reporting is a critical part of furthering
Title IX's purposes, we have revised the definition of complainant in
the final regulations to state (emphasis added): ``An individual who is
alleged to be the victim of conduct that could constitute sexual
harassment'' and removed the sentence in the NPRM that referenced to
whom the report of sexual harassment was made. This revision clarifies
that the person alleged to be the victim does not need to be the same
person who reported the sexual harassment. This revision also ensures
that any person reported to be the victim of sexual harassment (whether
the report was made by the alleged victim themselves or by a third
party) will be treated by the recipient as a ``complainant'' entitled
to, for example, the right to be informed of the availability of
supportive measures and of the process for filing a formal complaint,
under Sec. 106.44(a).
The final regulations, like the proposed rules, draw a distinction
between a recipient's general response to reported incidents of sexual
harassment (including offering supportive measures to the complainant),
on the one hand, and the circumstances that obligate a recipient to
initiate a grievance process, on the other hand. With respect to a
grievance process, the final regulations retain the proposed rules'
approach that a recipient is obligated to begin a grievance process
against a respondent (that is, to investigate and adjudicate
allegations) only where a complainant has filed a formal complaint or a
Title IX Coordinator has signed a formal complaint. Other than the
Title IX Coordinator (who is in a specially trained position to
evaluate whether a grievance process is necessary under particular
circumstances even without a complainant desiring to file the formal
complaint or participate in the grievance process), a person who does
not meet the definition of ``complainant'' under Sec. 106.30 cannot
file a formal complaint requiring the recipient to initiate a grievance
process. Other than a Title IX Coordinator, third parties cannot file
formal complaints.\546\ The Department believes the final regulations
appropriately delineate between the recipient's obligation to respond
promptly and meaningfully to actual knowledge of sexual harassment in
its education program or activity (including where the actual knowledge
comes from a third party), with the reality that permitting third
parties to file formal complaints would result in situations where a
complainant's autonomy is not respected (i.e., where the complainant
does not wish to file a formal complaint or participate in a grievance
process),\547\ and other situations where recipients are required to
undertake investigations that may be futile in terms of lack of
evidence because the complainant does not wish to participate.
---------------------------------------------------------------------------
\546\ As discussed above, a parent or guardian with the legal
right to act on a complainant's behalf may file a formal complaint
on the complainant's behalf. Sec. 106.6(g).
\547\ As one aspect of respect for complainant autonomy, every
complainant retains the right to refuse to participate in a
grievance process, and the Department has added Sec. 106.71 to the
final regulations, prohibiting retaliation generally, and
specifically protecting the right of any individual who chooses not
to participate in a grievance process. When a grievance process is
initiated in situations where the complainant did not wish to file a
formal complaint, this results in the complainant being treated as a
party throughout the grievance process (e.g., the recipient must
send both parties written notice of allegations, a copy of the
evidence for inspection and review, written notice of interviews
requested, a copy of the investigative report, written notice of any
hearing, and a copy of the written determination regarding
responsibility). This means that the complainant will receive
notifications about the grievance process even where the complainant
does not wish to participate in the process. The Department agrees
with commenters who urged the Department to recognize the importance
of a survivor's autonomy and control over what occurs in the
aftermath of a sexual harassment incident. The Department thus
desires to restrict situations where a grievance process is
initiated contrary to the wishes of the complainant to situations
where the Title IX Coordinator (and not a third party) has
determined that signing a formal complaint even without a
complainant's participation is necessary because not initiating a
grievance process against the respondent would be clearly
unreasonable in light of the known circumstances. Although a
complainant who did not wish to file a formal complaint and does not
want to participate in a grievance process may not want to receive
notifications throughout the grievance process, the recipient must
treat the complainant as a party by sending required notices, and
must not retaliate against the complainant for choosing not to
participate. Nothing in the final regulations precludes a recipient
from communicating to a non-participating complainant that the
recipient is required under these final regulations to send the
complainant notices throughout the grievance process and that such a
requirement is intended to preserve the complainant's right to
choose to participate, not to pressure the complainant into
participating. Such a practice adopted by a recipient would need to
be applied equally to respondents who choose not to participate in a
grievance process; see introductory sentence of Sec. 106.45(b).
---------------------------------------------------------------------------
In response to commenters' concerns that the definitions of
``complainant'' and ``formal complaint'' do not allow for situations
where a parent or guardian appropriately must be the person who makes
the decision to file a formal complaint on behalf of a minor child or
student with a disability, the final regulations add Sec. 106.6(g)
acknowledging that nothing about the final regulations may be read in
derogation of the legal rights of parents or guardians to act on behalf
of any individual in the exercise of rights under Title IX, including
filing a formal complaint on a complainant's behalf. In such a
situation, the parent or guardian does not become the ``complainant''
yet Sec. 106.6(g) clarifies that any parent or guardian may act on
behalf of the complainant (i.e., the person alleged to be the victim of
sexual harassment). If a parent or guardian has a legal right to act on
a person's behalf, the parent or guardian may always be the one who
files a formal complaint for a complainant. This parental or
guardianship authority to act on behalf of a party applies throughout
all aspects of a Title IX matter, from reporting sexual harassment to
considering appropriate and beneficial supportive measures, and from
choosing to file a formal complaint to participating in the grievance
process.\548\
---------------------------------------------------------------------------
\548\ See discussion in the ``Section 106.6(g) Exercise of
Rights by Parents/Guardians'' subsection of the ``Clarifying
Amendments to Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------
We decline commenters' suggestions to define a complainant as a
person reported to be the victim of ``sex-discriminatory conduct''
instead of ``conduct that could constitute sexual harassment,'' because
these final regulations specifically address a recipient's response to
allegations of sexual harassment and clearly define
[[Page 30123]]
the term ``sexual harassment'' in Sec. 106.30.
In the response to commenters' concerns that the phrase ``or on
whose behalf the Title IX Coordinator has filed a formal complaint'' in
the proposed definition of Sec. 106.30 created confusion in situations
where the Title IX Coordinator would have been required to file a
formal complaint upon receiving multiple reports against a
respondent,\549\ we have removed the phrase ``or on whose behalf the
Title IX Coordinator has filed a formal complaint'' from the definition
of complainant in Sec. 106.30. Numerous commenters urged the
Department to respect the autonomy of survivors, and we have concluded
that when a Title IX Coordinator signs a formal complaint, that action
is not taken ``on behalf of'' a complainant (who may not wish to file a
formal complaint or participate in a grievance process).\550\ Removal
of this phrase is more consistent with the Department's goal of
ensuring that every complainant receives a prompt, meaningful response
when a recipient has actual knowledge of sexual harassment in a manner
that better respects a complainant's autonomy by not implying that a
Title IX Coordinator has the ability to act ``on behalf of'' a
complainant when the Title IX Coordinator signs a formal complaint.
Removal of this phrase also helps clarify that when a Title IX
Coordinator signs a formal complaint, that action does not place the
Title IX Coordinator in a position adverse to the respondent; the Title
IX Coordinator is initiating an investigation based on allegations of
which the Title IX Coordinator has been made aware, but that does not
prevent the Title IX Coordinator from being free from bias or conflict
of interest with respect to any party.
---------------------------------------------------------------------------
\549\ For reasons discussed in the ``Proposed Sec. 106.44(b)(2)
[removed in the final regulations]'' subsection of the ``Recipient's
Response in Specific Circumstances'' section of this preamble, we
have removed the provision in the NPRM that would have required the
Title IX Coordinator to file a formal complaint upon receiving
multiple reports against a respondent. However, the final
regulations still grant a Title IX Coordinator the discretion to
decide to sign a formal complaint, and the Title IX Coordinator's
decision will be evaluated based on what was not clearly
unreasonable in light of the known circumstances.
\550\ We have also revised the definition of ``formal
complaint'' in Sec. 106.30 to clarify that signing a formal
complaint does not mean the Title IX Coordinator has become a
complainant or otherwise a party to the grievance process.
---------------------------------------------------------------------------
Changes: The final regulations revise the definition of
``complainant' in Sec. 106.30 by revising this provision to state that
complainant means ``an individual who is alleged to be the victim of
conduct that could constitute sexual harassment'' thereby removing the
phrase ``who has reported to be the victim,'' the phrase ``or on whose
behalf the Title IX Coordinator has filed a formal complaint,'' and the
sentence describing to whom a complainant had to make a report.
The final regulations add Sec. 106.6(g) addressing ``Exercise of
rights by parents or guardians'' and providing that nothing in the
final regulations may be read in derogation of any legal right of a
parent or guardian to act on behalf of a ``complainant,''
``respondent,'' ``party,'' or other individual.
Consent
Comments: Some commenters supported the proposed rules because the
proposed rules did not mandate an ``affirmative consent'' standard for
recipients to use in adjudicating sexual assault allegations. One
commenter expressed general support for the proposed rules and asserted
that courts across the country are ruling in favor of accused males for
reasons including schools' misuse of affirmative consent policies. One
commenter agreed with the fact that the proposed rules do not mandate
affirmative consent, arguing that affirmative consent often ends up
shifting the burden to the accused to prove innocence. One commenter
supported the proposed rules, asserting that under current policies the
responsibility to obtain and prove consent is on men, but the commenter
believed that under the proposed rules women will speak up and learn to
be more assertive.
One commenter expressed concern about not defining consent in the
proposed rules, asserting that with respect to rape, consent
definitions may vary across States and in some States there is no
consent element. One commenter discussed the importance of consent
because every person at every moment has the right to do whatever they
choose with their own body, and argued that sexual consent should be as
obvious as other kinds of consent in our society; for example, asserted
the commenter, a restaurant does not beg a patron incessantly to finish
a burger until the patron feels reluctantly forced to eat. This
commenter referenced internet videos sharing personal examples of the
results of violations of consent.\551\
---------------------------------------------------------------------------
\551\ Commenter cited, e.g.: Jennifer Gunsaullus, Sex and The
Price of Masculinity: My personal story of consent violation, The
Good Men Project (Aug. 8, 2016), https://goodmenproject.com/featured-content/sex-and-the-price-of-masculinity-gmp/.
---------------------------------------------------------------------------
One commenter recommended that language be added requiring the
complainant to prove absence of consent as opposed to requiring the
respondent to prove presence of consent. The commenter asserted that
this would make it clear that the burden of proof stays with the
complainant (or the school). One commenter urged the Department to
adopt the concept of implied consent as a safe harbor against sexual
assault claims in dating situations. One commenter advocated a
definition of sexual assault that recognizes that consent can be
negated by explicit and implicit threats, so that ``coercive sexual
violence'' that ``often includes a layer of nominal and deeply guilt
inducing ambiguity'' (due to a victim verbally expressing consent but
only because of fear based on the perpetrator's threats) would also be
covered under Title IX.
One commenter stated that some institutions use affirmative consent
while others use ``no means no'' and asked the Department to clarify
whether recipients are expected to use a specific definition for
consent because sexual assault depends on whether a victim consented.
Several commenters stated that universities should strive to
provide clear rules with respect to what is considered consensual
sexual conduct.
Some commenters urged the Department to provide additional
clarification for how schools should handle consent in situations where
both students were drunk. One commenter suggested that the Department
should clarify that Title IX's non-discrimination language means that
when male and female students are both drunk and have sex, the school
may not automatically assign blame to the male and victimhood to the
female because, the commenter asserted, this approach is based on
outdated gender stereotypes and violates Title IX. Another commenter
opined that while drunken hookups are never a good idea, colleges must
recognize that students do get intoxicated and have sex, as do many
non-students, yet a young couple getting married and drinking champagne
are not raping each other if they consummate the marriage later that
night while their blood alcohol is beyond the legal limit to drive; the
commenter asserted that colleges can make their policies stricter than
the law, but must make that language clear. A few commenters asserted
that schools have often failed to recognize the idea that when school
policies states that any sign of intoxication means consent is invalid,
that policy should go both ways (i.e., applied equally to men and
women).
One commenter, a female university student, expressed concern that
under
[[Page 30124]]
current consent rules, being drunk while consenting is often not truly
considered consent, and that in situations where both parties could be
perceived as assaulting each other--because both had been drinking so
that neither party gave valid consent--the woman's position is usually
the only one taken into account, leading the commenter to believe that
if a woman has an encounter she regrets, but did not communicate lack
of consent at the time, she can report to the school and it will be
investigated without getting the partner's perspective in a fair
manner. Another commenter supported treating women and men equally when
it comes to drug or alcohol-infused sex.
Some commenters provided articles discussing the meaning of
consent, including whether the level of intoxication is relevant to the
definition of consent. One commenter stated that one of the areas
recipients appear to be struggling with is that lack of consent may be
based on temporary or permanent mental or physical incapacity of the
victim, and the commenter recommended that the Department inform
recipients that inebriation is not equivalent to incapacitation.
Several commenters were concerned that the proposed rules did not
impose an affirmative consent standard. One commenter argued that
failing to include affirmative consent buys into rape myths including
that silence is consent. One commenter criticized the proposed rules
for ignoring the best practice standard of affirmative consent, or the
``yes means yes'' model for consent to any sexual activity, and the
commenter argued that not imposing an affirmative consent standard will
do a disservice to people who do not give a clear ``No,'' who freeze,
or revoke consent, and that this will override the important work many
institutions have done to get students to understand the value and
intricacies of affirmative consent. One commenter stated that
affirmative consent policies are not best practices, are often
confusing and difficult to enforce in a consistent, non-arbitrary
manner, and end up shifting the burden onto a respondent to prove
innocence; this commenter cited a law review article noting that
affirmative consent policies often require the accused to show clear,
unambiguous (and in some policies, ``enthusiastic'') consent.\552\ One
commenter argued that affirmative consent policies violate Title IX
because such policies discriminate against men.\553\ Another commenter
asserted that based on personal experience representing respondents in
campus Title IX proceedings, many schools require the respondent to
prove that there was consent, either by using an affirmative consent
standard or by placing undue emphasis on a common provision in
institutional policies and practices, that consent to one sexual act
does not necessarily imply consent to another sexual act but that in
either scenario, institutions often shift the burden of proof to
respondents to prove their innocence, which the commenter asserted is
inconsistent with centuries-old understandings of due process.
---------------------------------------------------------------------------
\552\ Commenter cited: Jacob E. Gerson & Jeannie Suk Gersen, The
Sex Bureaucracy, 104 Cal. L. Rev. 881 (2016).
\553\ Commenter cited: Samantha Harris, University of Miami Law
Prof: Affirmative Consent Effectively Shifts Burden of Proof to
Accused, Foundation for Individual Rights in Education (FIRE) (Sept.
11, 2015), https://www.thefire.org/university-of-miami-law-prof-affirmative-consent-effectively-shifts-burden-of-proof-to-accused/.
---------------------------------------------------------------------------
One commenter was concerned that the proposed rules do not prevent
a school from using an affirmative consent standard and recommended
that the Department clarify that an affirmative consent standard
violates Title IX because it unfairly shifts the burden of proof to
respondents and has a disparate impact on men because, the commenter
argued, women are content to let men initiate sexual conduct even when
sexual advances turn out to be welcome. One commenter expressed concern
about affirmative consent and asserted that college administrators have
no right to regulate the private lives of adults when neither person is
compelled by threats or force. One commenter opined that while
affirmative consent makes sense when gauging overt sexual initiatives
between strangers, it is a ridiculous standard to apply to people in
sexual relationships, or even to the typical college party situation,
because under affirmative consent, waking up a lover with a kiss is
sexual assault, as is every thrust if consent is not somehow re-
communicated in between.
One commenter expressed concern that some sexual assault laws say
that ``not saying no'' can be considered assault. One commenter argued
that ``overthinking'' about sexual consent causes men not to approach
women as much, and the commenter stated this is not good for society
because it causes educated folks not to approach each other.
Another commenter stated that while the idea of affirmative consent
sounds good, in practice it seems as if colleges look at this as the
responsibility of one person, usually the male; the commenter suggested
rebranding affirmative consent as affirmative communication, and
recommended that colleges make clear that both parties have a duty to
seek consent, but also that both parties are responsible for
communicating discomfort or communicating if they do not want to
proceed with sexual activity.
One commenter recommended that the Department address training
standards for decision-makers, including faculty, to address what
commenters believed is shoddy research from dubious sources used in
training materials that contributes to unjust decisions. The commenter
referenced training around topics such as the amount of inebriation
that violates consent and situations in which both parties are too
drunk to consent.
One commenter expressed concern that the proposed rules would
permit the introduction of evidence regarding the complainant's sexual
history, when offered to prove consent. The commenter asserted that by
permitting this evidence to prove consent, but not providing a
definition of consent, the proposed rules will lead to an increase in
ambiguity and the possibility of abuse by the accused in using evidence
about a complainant's sexual history.
Discussion: The third prong of the Sec. 106.30 definition of
sexual harassment includes ``sexual assault'' as used in the Clery Act,
20 U.S.C. 1092(f)(6)(A)(v), which, in turn, refers to the FBI's Uniform
Crime Reporting Program (FBI UCR) and includes forcible and nonforcible
sex offenses such as rape, fondling, and statutory rape which contain
elements of ``without the consent of the victim.'' The Department
acknowledges that the Clery Act, FBI UCR, and these final regulations
do not contain a definition of consent. The Department believes that
the definition of what constitutes consent for purposes of sexual
assault within a recipient's educational community is a matter best
left to the discretion of recipients, many of whom are under State law
requirements to apply particular definitions of consent for purposes of
campus sexual misconduct policies. The Department's focus in these
final regulations is on recipients' response to sexual harassment when
such conduct constitutes sex discrimination prohibited by Title IX. The
Department believes that the definition of sexual assault used by the
Federal government for crime reporting purposes appropriately captures
conduct that constitutes sex discrimination under Title IX, regardless
of whether the ``without the consent'' element in certain sex offenses
is as narrow as some State criminal laws define consent, or
[[Page 30125]]
broader as some State laws have required for use in campus sexual
assault situations. Recipients may consider relevant State laws in
adopting a definition of consent. For these reasons, the Department
declines to impose a federalized definition of consent for Title IX
purposes, notwithstanding commenters who would like the Department to
adopt an affirmative consent standard, a ``no means no'' standard, an
implied consent doctrine, or definitions of terms commonly used to
indicate the absence or negation of consent (such as coercion, duress,
or incapacity). In response to commenters asking for clarification, the
Department has revised Sec. 106.30 to include an entry for ``Consent''
confirming that the Department will not require recipients to adopt a
particular definition of consent with respect to sexual assault.
The Department agrees that recipients must clearly define consent
and must apply that definition consistently, including as between men
and women and as between the complainant and respondent in a particular
Title IX grievance process because to do otherwise would indicate bias
for or against complainants or respondents generally, or for or against
an individual complainant or respondent, in contravention of Sec.
106.45(b)(1)(iii), and could potentially be ``treatment of a
complainant'' or ``treatment of a respondent'' that Sec. 106.45(a)
recognizes may constitute sex discrimination in violation of Title IX.
We have revised the introductory sentence of Sec. 106.45(b)(3) to
state that any rules or practices that a recipient adopts and applies
to its grievance process must equally apply to both parties.
The Department appreciates the variety of commenters' views
regarding whether intoxication negates consent, whether verbal pressure
amounts to coercion negating consent, and whether affirmative consent
standards do, or do not, represent a best practice. However, for the
reasons discussed above, the Department declines to impose on
recipients a particular definition of consent, or terms used to
describe the absence or negation of consent (such as coercion or
incapacity).
The Department disagrees that affirmative consent standards
inherently place the burden of proof on a respondent, but agrees with
commenters who observed that to the extent recipients ``misuse
affirmative consent'' (or any definition of consent) by applying an
instruction that the respondent must prove the existence of consent,
such a practice would not be permitted under a Sec. 106.45 grievance
process.\554\ Regardless of how a recipient's policy defines consent
for sexual assault purposes, the burden of proof and the burden of
collecting evidence sufficient to reach a determination regarding
responsibility, rest on the recipient under Sec. 106.45(b)(5)(i). The
final regulations do not permit the recipient to shift that burden to a
respondent to prove consent, and do not permit the recipient to shift
that burden to a complainant to prove absence of consent.
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\554\ Section 106.45(b)(5)(i) (stating burden of proof must rest
on the recipient and not on the parties).
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The final regulations require Title IX Coordinators, investigators,
decision-makers, and any person who facilitates an informal resolution,
to be trained on how to conduct an investigation and grievance process;
this would include how to apply definitions used by the recipient with
respect to consent (or the absence or negation of consent)
consistently, impartially, and in accordance with the other provisions
of Sec. 106.45.
Because a recipient's definition of consent must be consistently
applied, the Department does not believe that the reference to consent
in the ``rape shield'' protections contained in Sec. 106.45(b)(6)(i)-
(ii) will cause the proceedings contemplated in those provisions to be
ambiguous or subject to abuse by a respondent. While the Department
declines to impose a definition of consent on recipients, a recipient
selecting its own definition of consent must apply such definition
consistently both in terms of not varying a definition from one
grievance process to the next and as between a complainant and
respondent in the same grievance process. The scope of the questions or
evidence permitted and excluded under the rape shield language in Sec.
106.45(b)(6)(i)-(ii) will depend in part on the recipient's definition
of consent, but, whatever that definition is, the recipient must apply
it consistently and equally to both parties, thereby avoiding the
ambiguity feared by the commenter. In further response to the
commenter's concern, we have revised Sec. 106.45(b)(1)(iii)
specifically to require investigators and decision-makers to be trained
on issues of relevance, including how to apply the rape shield
provisions (which deem questions and evidence about a complainant's
prior sexual history to be irrelevant with two limited exceptions).
Because a recipient cannot place the burden of proving consent on a
respondent (or on a complainant to prove absence of consent), while
questions and evidence subject to the rape shield language in Sec.
106.45(b)(6)(i)-(ii) may come from a respondent, it is not the
respondent's burden to prove or establish consent; questions and
evidence may also be posed or presented by the recipient during the
recipient's investigation and adjudication.
Changes: The Department revises Sec. 106.30 to state that the
Assistant Secretary will not require recipients to adopt a particular
definition of consent with respect to sexual assault.
Comments: Some commenters emphasized the need to teach about sexual
consent. One commenter supported providing greater consent education to
students, including treating both parties equally with respect to
situations where both parties were under the influence of alcohol or
drugs. One commenter stated that there needs to be more teaching about
consent because there is a lot of confusion, and another commenter
urged the Department to make it mandatory for every freshman in college
to attend a course on bullying, sexual harassment, and consent.
One commenter expressed general opposition for the proposed rules,
asserting that children should live in a world that takes consent and
assault seriously. One commenter, who works as a counselor at a
university, expressed opposition to the proposed rules, stating that
they would undo the important work of educators to instill in young
people an understanding of how consent works. One commenter who works
as a prevention educator teaching students about consent argued that
the proposed rules paint women as liars, which makes useless the work
of teaching students that consent should be celebrated, and ends up
failing the young people of our country. One commenter expressed
general opposition to the proposed rules and stated ``consent first.''
One commenter expressed general opposition to the proposed rules and
asserted a belief in sex education and teaching consent. One commenter
stated that the commenter's school requires mandatory courses on
sexuality and rape prevention that stress the importance of consent,
open communication, and bystander intervention. The commenter stated
that even with this training the commenter has still been subjected to
sexual harassment in college and asserted that the absence of Title IX
protections will ruin the commenter's ability to learn.
Discussion: The Department appreciates commenters who expressed a
belief in the importance of educating students about consent, healthy
relationships and communication, drug
[[Page 30126]]
and alcohol issues, and sexual assault prevention (as well as bullying
and harassment, generally). The Department shares commenters' beliefs
that measures preventing sexual harassment from occurring in the first
place are beneficial and desirable. Although the Department does not
control school curricula and does not require recipients to provide
instruction regarding sexual consent, nothing in these final
regulations impedes a recipient's discretion to provide educational
information to students.
Changes: None.
Elementary and Secondary Schools
Comments: At least one commenter requested clarity as to the
definition of ``schools.''
Discussion: In the proposed regulations, the Department referred to
recipients that are elementary and secondary schools,\555\ but did not
provide a definition for ``elementary and secondary schools.'' To
provide clarity, the Department adds a definition of ``elementary and
secondary schools'' that aligns with the definition of ``educational
institutions'' in 34 CFR 106.2(k), which is a definition that applies
to Part 106 of Title 34 of the Code of Federal Regulations. Section
106.2(k) defines an educational institution in relevant part as a local
educational agency as defined in the Elementary and Secondary Education
Act of 1965, which has been amended by the Every Student Succeeds Act
(hereinafter ``ESEA''), a preschool, or a private elementary or
secondary school. Consistent with the first part of the definition in
34 CFR 106.2(k), the Department includes a definition of ``elementary
and secondary schools'' to mean a local educational agency (LEA), as
defined in the ESEA, a preschool, or a private elementary or secondary
school. The remainder of the entities described as educational
institutions in 34 CFR 106.2(k) constitute postsecondary institutions
as explained in the section, below, on the definition of
``postsecondary institutions.'' The definitions of ``elementary and
secondary school'' and ``postsecondary institution'' apply only to
Sec. Sec. 106.44 and 106.45 of these final regulations.
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\555\ 83 FR 61498.
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Changes: The Department includes a definition of elementary and
secondary schools as used in Sec. Sec. 106.44 and 106.45 to mean a LEA
as defined in the ESEA, a preschool, or a private elementary or
secondary school.
Formal Complaint
Support for Formal Complaint Definition
Comments: Some commenters supported the definition of a ``formal
complaint'' in Sec. 106.30, and asserted that requiring a formal
complaint to initiate an investigation is reasonable and appropriate,
and will bring clarity to the process of investigating allegations of
sexual harassment. Some commenters supported the formal complaint
definition as a benefit to complainants by giving complainants control
over what happens to their report, and a benefit to institutions by
ensuring the institution has written documentation indicating that the
complainant wanted an investigation to begin.
Commenters supported requiring a formal complaint before an
investigation begins because, commenters asserted, complainants may
wish for informal discussions to remain confidential and the formal
complaint requirement will empower complainants to decide when to
report and when to start an investigation. Commenters asserted that the
process for filing a formal complaint described in Sec. 106.30 did not
seem much different or more burdensome from other formal processes that
students are accustomed to following in college, such as registering
for classes or applying to study abroad. Commenters asserted that under
the withdrawn 2011 Dear Colleague Letter, survivor advocates often
worked with survivors who found themselves involved in Title IX
processes that the survivor had not wished to initiate, due to
disclosing sexual assault to an individual the survivor did not know
was required to report to the Title IX Coordinator. Commenters asserted
that many survivors choose not to report for a variety of reasons,\556\
and involuntary participation in a conduct process goes against
standard knowledge of trauma and sexual violence recovery that
emphasizes the importance of allowing survivors to retain control of
their recovery to the extent possible. Commenters argued that when
victims are unexpectedly or unwillingly involved in Title IX processes,
this contradicts best practices because healing from the trauma of
sexual violence is promoted when victims are able to maintain control
of their recovery. Commenters argued that implementing a formal
complaint process will empower survivors to report to higher education
institutions if and when they are ready, and to file a formal complaint
to institutions by the victim's own informed choice, on their own
terms, by their own volition.
---------------------------------------------------------------------------
\556\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Criminal
Victimization: 2016 Revised 5 (2018).
---------------------------------------------------------------------------
Other commenters supported the formal complaint definition as a
benefit to respondents, so that schools begin investigations only after
a complainant has signed a document describing the allegations;
commenters argued this is important for due process given the serious
nature of the accusations at issue and the potential punishment.
Commenters asserted that requiring a formal complaint will encourage
only complainants with serious accusations to come forward.
One commenter expressed support for the formal complaint
requirement, but urged the Department to require that formal complaints
be filed ``without undue delay'' because, the commenter asserted,
passage of time can prejudice a fair investigation due to memories
fading and evidence being lost.
Discussion: The Department appreciates the support from commenters
for the definition of ``formal complaint'' in Sec. 106.30 and the
requirement that recipients must investigate the allegations in a
formal complaint.\557\ We agree that defining a formal complaint and
requiring a recipient to initiate a grievance process in response to a
formal complaint brings clarity to the circumstances under which a
recipient is required to initiate an investigation into allegations of
sexual harassment. The Department believes that complainants,
respondents, and recipients benefit from the clarity and transparency
of specifying the conditions that trigger the initiation of a grievance
process. As explained below, in response to commenters' concerns and
questions we have revised the definition of ``formal complaint'' \558\
and made revisions throughout the final regulations,\559\ to
[[Page 30127]]
clarify how a recipient must respond to any report or notice of sexual
harassment, versus when a recipient specifically must respond by
initiating a grievance process.
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\557\ E.g., Sec. 106.44(b)(1); Sec. 106.45(b)(3)(i).
\558\ As discussed throughout this section of the preamble, we
have revised the Sec. 106.30 definition of ``formal complaint'' to
broaden the definition of what constitutes a written, signed
document, simplify, clarify, and make more accessible the process
for filing, and provide that signing a formal complaint does not
mean a Title IX Coordinator becomes a party to a grievance process.
\559\ For example, we have revised Sec. 106.44(a) to clarify
specific steps a recipient must take as part of a prompt, non-
deliberately indifferent response, including offering supportive
measures with or without the filing of a formal complaint, and
explaining to a complainant how to file a formal complaint, so that
if a complainant wants to exercise the option of filing, the
complainant (including a parent or legal guardian, as appropriate)
knows how to do so. We have added Sec. 106.6(g) to acknowledge the
legal rights of parents or guardians to act on behalf of a
complainant, respondent, or other party, including with respect to
the filing of a formal complaint.
---------------------------------------------------------------------------
The Department believes that the final regulations benefit
complainants by obligating recipients to offer complainants supportive
measures regardless of whether the complainant files a formal
complaint, and informing complainants of how to file a formal
complaint; obligating recipients to initiate a grievance process if the
complainant decides to file a formal complaint; and giving strong due
process protections to a complainant who decides to participate in a
grievance process.
The Department believes that the final regulations benefit
respondents by ensuring that recipients do not impose disciplinary
sanctions against a respondent without following a grievance process
that complies with Sec. 106.45,\560\ and that the prescribed grievance
process gives strong due process protections to both parties.
---------------------------------------------------------------------------
\560\ Revised Sec. Sec. 106.44(a) and 106.45(b)(1)(i) state
that a recipient must treat respondents equitably by not imposing
disciplinary sanctions or other actions that are not ``supportive
measures'' as defined in Sec. 106.30, against a respondent without
first following the Sec. 106.45 grievance process. Exceptions to
this prohibition are that any respondent may be removed from an
education program or activity on an emergency basis, whether or not
a grievance process is pending, under Sec. 106.44(c), and a non-
student employee respondent may be placed on administrative leave
during the pendency of an investigation, under Sec. 106.44(d), for
reasons described in the ``Additional Rules Governing Recipients'
Responses to Sexual Harassment'' subsection of the ``Section 106.44
Recipient's Response to Sexual Harassment, Generally'' section of
this preamble.
---------------------------------------------------------------------------
The Department believes that the final regulations benefit
recipients by specifying a recipient's obligation to respond promptly
and without deliberate indifference to every complainant (i.e., a
person alleged to be the victim of sexual harassment), while clarifying
the recipient's obligation to conduct an investigation and adjudication
of allegations of sexual harassment when the complainant files, or the
Title IX Coordinator signs, a formal complaint.
We do not agree that a formal complaint requirement encourages only
complainants with ``serious accusations'' to come forward. While
certain acts of sexual harassment may have even greater traumatic,
harmful impact than other such acts, the Department believes that all
conduct that constitutes sexual harassment under Sec. 106.30 is
serious misconduct that warrants a serious response. All the conduct
defined as ``sexual harassment'' in Sec. 106.30 is misconduct that is
likely to deny a person equal access to education, and recipients must
respond promptly and supportively to every known allegation of sexual
harassment whether or not a complainant wants to also file a formal
complaint.\561\ Filing a formal complaint is not required for a
complainant to receive supportive measures.
---------------------------------------------------------------------------
\561\ Section 106.44(a) (requiring a prompt, non-deliberately
indifferent response any time a recipient has actual knowledge of
sexual harassment in the recipient's education program or activity,
against a person in the United States).
---------------------------------------------------------------------------
We decline to impose a requirement that formal complaints be filed
``without undue delay.'' The Department believes that imposing a
statute of limitations or similar time limit on the filing of a formal
complaint would be unfair to complainants because, as many commenters
noted, for a variety of reasons complainants sometimes wait various
periods of time before desiring to pursue a grievance process in the
aftermath of sexual harassment, and it would be difficult to discern
what ``undue'' delay means in the context of a particular complainant's
experience. Title IX obligates recipients to operate education programs
or activities free from sex discrimination, and we do not believe Title
IX's non-discrimination mandate would be furthered by imposing a time
limit on a complainant's decision to file a formal complaint. The
Department does not believe that a statute of limitations or ``without
undue delay'' requirement is needed to safeguard the rights of
respondents, because the extensive due process protections afforded
under the Sec. 106.45 grievance process appropriately safeguard the
fundamental fairness and reliability of Title IX proceedings by
requiring procedures that take into account any effect of passage of
time on party or witness memories or the availability or quality of
other evidence.\562\ We have, however, revised the Sec. 106.30
definition of formal complaint to state that at the time of filing a
formal complaint, the complainant must be participating in or
attempting to participate in the recipient's education program or
activity. This ensures that a recipient is not required to expend
resources investigating allegations in circumstances where the
complainant has no affiliation with the recipient, yet refrains from
imposing a time limit on a complainant's decision to file a formal
complaint.
---------------------------------------------------------------------------
\562\ For example, the final regulations provide both parties
equal opportunity to gather, present, and review relevant evidence,
such that parties can note whether passage of time has resulted in
unavailability of evidence and raise arguments about how the
decision-maker should weigh the evidence that remains. Further, the
final regulations provide in Sec. 106.45(b)(3)(ii) that a recipient
has discretion to dismiss a formal complaint where specific
circumstances prevent the recipient from meeting the recipient's
burden to gather sufficient evidence. Passage of time could in
certain fact-specific circumstances result in the recipient's
inability to gather evidence sufficient to reach a determination
regarding responsibility.
---------------------------------------------------------------------------
Changes: As discussed in more detail throughout this section of the
preamble, we have revised the Sec. 106.30 definition of ``formal
complaint'' to: Broaden the definition of what constitutes a written,
signed document, simplify the process for filing, state that at the
time of filing the formal complaint the complainant must be
participating or attempting to participate in the recipient's education
program or activity, and clarify that signing a formal complaint does
not mean a Title IX Coordinator becomes a party to a grievance process.
We have revised Sec. 106.44(a) to clarify specific steps a
recipient must take as part of a prompt, non-deliberately indifferent
response to actual knowledge of any sexual harassment incident
(regardless of whether any formal complaint has been filed), including
offering supportive measures to the complainant irrespective of whether
a formal complaint is filed, and explaining to the complainant how to
file a formal complaint. We have added Sec. 106.6(g) to acknowledge
the legal rights of parents or guardians to act on behalf of a
complainant, respondent, or other party, including with respect to
filing a formal complaint.
No Formal Complaint Required To Report Sexual Harassment
Comments: Several commenters believed that the proposed rules
required complainants to file formal complaints in order to report
sexual harassment, or that a formal complaint meeting the definition in
Sec. 106.30 was required before a school would have to take any action
to help a student who reported sexual harassment, including offering
supportive measures. Commenters argued that effective reporting systems
must be flexible enough to give survivors as much control as possible
over how they report sexual harassment and assault, including the
option to remain anonymous or to report the crime without pursuing
charges. Commenters asserted that when a victim reports shortly after a
sexual harassment incident, the victim is often overwhelmed with
emotions, and requiring them to provide formal, written, signed
documentation would be
[[Page 30128]]
an enormous emotional task that would cause some victims to question
whether reporting is worth it at all.
Commenters argued that requiring a formal complaint before a school
must respond to notice of sexual harassment would violate the Supreme
Court's standards in Davis, which requires an institutional response
without a written or signed complaint. Commenters argued that a
``formal complaint standard'' imposes a more rigorous notice standard
than the Davis standard, contradicts the Department's stated intent to
use the Davis standard, and leaves recipients vulnerable to private
litigation.
Some commenters believed that the proposed rules would require
survivors to file formal complaints such that every report would
trigger an investigation; commenters argued that this would violate
survivors' autonomy and reduce the likelihood that survivors would come
forward to get help. Commenters argued that formal complaints
initiating a grievance process should not be required in order to
report sexual assault, because not every survivor wants an
investigation after experiencing sexual assault. Commenters argued that
requiring survivors to report sexual harassment by filing formal
complaints, involving writing down details of a traumatic experience in
a signed document, would deter survivors from ever coming forward.
Commenters believed that the proposed rules would require a formal
complaint in order for the recipient to respond to a report and argued
that this would chill reporting of sexual assault, which would affect
the number of Clery crime reports and artificially make campuses appear
safer than they are. Commenters argued that instead, schools should
have to respond to any information about sexual harassment, assess the
information, and take appropriate steps to stop the harassment.
Commenters believed that the proposed rules created two different
``prompt and equitable'' grievance systems--one process for a school's
response to a ``formal complaint'' of sexual harassment, and a
different process for a school's response to an ``informal complaint''
of sexual harassment.
Discussion: Contrary to some commenters' understanding, neither the
proposed rules, nor the final regulations, requires a formal complaint
as a condition for any person to report sexual harassment to trigger a
recipient's obligation to respond promptly and meaningfully. Like the
proposed rules, the final regulations obligate a recipient to respond
\563\ in a manner that is not clearly unreasonable in light of the
known circumstances, whenever a recipient has actual knowledge of
sexual harassment in the recipient's education program or activity,
against a person in the United States.\564\ The requirement that a
recipient must investigate allegations in a formal complaint does not
change the fact that a recipient must respond, every time the recipient
has actual knowledge, in a way that is not deliberately indifferent--
even in the absence of a formal complaint.\565\ The requirement that a
recipient must investigate allegations in a formal complaint provides
clarity to complainants, respondents, and recipients as to when a
recipient's response must also consist of investigating allegations.
Under the final regulations, a Title IX Coordinator has discretion to
sign a formal complaint that initiates a grievance process; thus, if a
non-deliberately indifferent response to actual knowledge of sexual
harassment necessitates investigating allegations, the recipient (via
the Title IX Coordinator) has the authority to take that action. As
discussed in the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment,'' the conditions triggering a
recipient's response obligations (i.e., actionable sexual harassment,
and actual knowledge) are built on the foundation of the same concepts
used in the Gebser/Davis framework. Similarly, the deliberate
indifference standard is built on the same concept used in the Gebser/
Davis framework, but these final regulations tailor that standard to
require the recipient to take actions in response to every instance of
actual knowledge of sexual harassment, including specific obligations
that are not required under the Gebser/Davis framework. These final
regulations clarify that a recipient's response obligations must always
include offering supportive measures to the complainant, and must also
include initiating a grievance process against the respondent when the
complainant files, or the Title IX Coordinator signs, a formal
complaint. The formal complaint definition, and the requirement that
recipients must investigate formal complaints, therefore comport with
the Gebser/Davis framework used in private Title IX lawsuits and do not
increase recipients' vulnerability to legal challenges.
---------------------------------------------------------------------------
\563\ The final regulations revise Sec. 106.44(a) to require a
recipient to respond ``promptly.''
\564\ Revised Sec. 106.44(a) specifies that a recipient's
response must include offering supportive measures to a complainant
(i.e., the person alleged to be the victim of conduct that could
constitute sexual harassment), and requires the Title IX Coordinator
promptly to contact the complainant to discuss the availability of
supportive measures with or without the filing of a formal
complaint, consider the complainant's wishes, and explain to the
complainant the option of filing a formal complaint.
\565\ Section 106.44(b)(1) (stating that with or without a
formal complaint, a recipient must comply with all the response
obligations described in Sec. 106.44(a)).
---------------------------------------------------------------------------
While we adopt the Gebser/Davis framework, we adapt that framework
by requiring recipients to take certain steps as part of every non-
deliberately indifferent response to actual knowledge of sexual
harassment, irrespective of whether a formal complaint is filed.\566\
We have revised Sec. 106.44(a) to specify that a recipient's prompt,
non-deliberately indifferent response must include offering supportive
measures to each complainant (i.e., a person who is alleged to be the
victim), and specifically having the Title IX Coordinator contact the
complainant to discuss the availability of supportive measures with or
without the filing of a formal complaint, consider the complainant's
wishes regarding supportive measures, and explain to the complainant
the process for filing a formal complaint.
---------------------------------------------------------------------------
\566\ Section 106.44(b)(1) clarifies that whether or not a
formal complaint requiring investigation has also been filed, the
recipient must provide the prompt, non-deliberately indifferent
response described in Sec. 106.44(a), which includes offering
supportive measures to the complainant.
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We agree with commenters who asserted that requiring a complainant
to sign formal documentation describing allegations of sexual
harassment in order to report and receive supportive measures would
place an unreasonable burden on survivors, and the final regulations
obligate recipients to respond promptly and meaningfully--including by
offering supportive measures--whenever the recipient has actual
knowledge that a person has been allegedly victimized by sexual
harassment in the recipient's education program or activity, regardless
of whether the complainant or Title IX Coordinator initiates a
grievance process by filing or signing a formal complaint. The manner
by which a recipient receives actual knowledge need not be a written
statement, much less a formal complaint; actual knowledge may be
conveyed on a recipient via ``notice'' from any person--not only from
the complainant (i.e., person alleged to be the victim)--regardless of
whether the person who reports does so anonymously.\567\ The final
regulations
[[Page 30129]]
thus effectuate the purpose of Title IX's non-discrimination mandate by
requiring recipients to respond to information about sexual harassment
in the recipient's education program or activity, from whatever source
that information comes,\568\ while reserving the specific obligation to
respond by investigating and adjudicating allegations to situations
where the complainant (i.e., the person alleged to be the victim) or
Title IX Coordinator has decided to file a formal complaint. The formal
complaint definition thus ensures that complainants retain more
autonomy and control over when the complainant's reported victimization
leads to a formal grievance process, and recipients are not forced to
expend resources investigating situations over the wishes of a
complainant, unless the Title IX Coordinator has determined that such
an investigation is necessary. We agree with commenters that not every
complainant wants a recipient to respond to reported sexual harassment
by initiating a grievance process; some complainants want an
investigation, others do not, and some do not initially desire an
investigation but later decide they do want to file formal ``charges.''
The final regulations ensure that every complainant is informed of the
option and process for filing a formal complaint, yet never require a
complainant to file a formal complaint in order to receive supportive
measures. We believe that by respecting complainants' autonomy the
final regulations will not chill reporting of sexual harassment, but
instead will provide complainants with clearer options and greater
control over the process.\569\
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\567\ Section 106.30 (defining ``actual knowledge''). Where a
person reports anonymously (regardless of whether the person is the
complainant (i.e., the person alleged to be the victim) or a third
party), the nature of the recipient's non-deliberately indifferent
response may depend on whether the report contains information
identifying the alleged victim; for example, Sec. 106.44(a)
requires a recipient to respond to actual knowledge by offering the
complainant supportive measures, but a recipient may not be capable
of taking that action if the person who reported refuses to identify
the complainant. A recipient's response is judged on whether the
response is clearly unreasonable in light of the known
circumstances, which includes what information the recipient
received about the identity of the complainant.
\568\ To ensure that a recipient's educational community has
clear, accessible reporting options, and understands that any person
may report sexual harassment to trigger the recipient's obligation
to offer supportive measures and explain the option of filing a
formal complaint to a person allegedly victimized by sexual
harassment, we have revised Sec. 106.8 to: State that any person
may report, using contact information that a recipient must list for
the Title IX Coordinator; state that reports may be made in person,
by mail, phone, or email, or by any other method that results in a
Title IX Coordinator receiving the person's written or verbal
report; and require recipients to post the Title IX Coordinator's
contact information on the recipient's website. We have also revised
Sec. 106.30 (defining ``actual knowledge'') to provide that notice
of sexual harassment allegations to any elementary or secondary
school employee triggers the school's response obligations.
\569\ Denying a survivor control over how a disclosure of sexual
assault is handled by the survivor's school can also constitute a
harmful form of institutional betrayal, and the final regulations
desire to mitigate such harm by giving the complainant a clear,
accessible option to file, or not file, a formal complaint (while
receiving supportive measures either way) and by protecting the
complainant's right to participate, or choose not to participate, in
a grievance process whether the grievance process is initiated by
the complainant or by the Title IX Coordinator. See, e.g., Merle H.
Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29
Yale J. of L. & Feminism 123, 140-141 (2017) (identifying one type
of institutional betrayal as the harm that occurs when ``the
survivor thinks she [or he] is speaking to a confidential resource,
but then finds out the advocate cannot keep their conversations
private''); Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous
Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 J.
of Traumatic Stress 1, 120 (2013) (describing ``institutional
betrayal'' as when an important institution, or a segment of it,
acts in a way that betrays its member's trust). Where a Title IX
Coordinator signs a formal complaint knowing the complainant did not
wish to do so, the recipient must respect the complainant's wishes
regarding whether to participate or not in the grievance process.
Sec. 106.71 (prohibiting retaliation).
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Contrary to some commenters' understanding, the final regulations
do not create two separate systems of ``prompt and equitable grievance
procedures'' for how a recipient responds to sexual harassment based on
whether the recipient receives a formal complaint or informal
complaint. Rather, the final regulations obligate the recipient to
respond to every known allegation of sexual harassment (regardless of
how, or from whom, the recipient receives notice) promptly and non-
deliberately indifferently, and obligate the recipient to respond by
initiating a grievance process when the recipient receives a formal
complaint of sexual harassment. If commenters referred to an ``informal
complaint of sexual harassment'' to describe a report or disclosure of
sexual harassment that is not a ``formal complaint'' as defined in
Sec. 106.30, the final regulations require recipients to respond
promptly and non-deliberately indifferently (including by offering the
complainant supportive measures) to such a report or disclosure, but
the recipient need not initiate investigation or adjudication
procedures unless the recipient receives a ``formal complaint of sexual
harassment.'' Furthermore, Sec. 106.44(a) precludes recipients from
responding to reports, disclosures, or notice of alleged sexual
harassment by imposing disciplinary sanctions on a respondent without
first following a grievance process that complies with Sec. 106.45.
The ``prompt and equitable'' grievance procedures to which commenters
referred still must be adopted, published, and used by a recipient to
address complaints of non-sexual harassment sex discrimination, under
Sec. 106.8(c), while recipients must respond to formal complaints of
sexual harassment by following a grievance process that complies with
Sec. 106.45.
Changes: None.
Burden on Complainants To File a Formal Complaint
Comments: Commenters argued that requiring a formal complaint in
order to begin an investigation places an unfair burden on victims who
want an investigation but should not have to comply with specific
paperwork and procedures, or because requiring a victim to put their
name in writing and flesh out the details of a harrowing experience in
a written narrative may be retraumatizing. Commenters argued that many
institutions follow a principle that a victim should only have to make
a single statement about an incident, and therefore a victim's written
or oral disclosure to a police officer, or to any responsible campus
employee, should be sufficient to trigger an investigation. Commenters
asserted that some State protocols for sexual assault investigations
(for example, in New Hampshire) caution against collecting written
statements from victims.
Commenters argued that making victims sign a document with a
statement of facts is inappropriate due to the potential effect of such
a document on any future litigation. Commenters argued that it is
unfair to make victims sign a written statement to start an
investigation because the written statement could be wrongfully used to
discredit a victim during the investigation if the victim's later
statements show any inconsistencies with the formal complaint, and
victims in the immediate aftermath of sexual violence may have trouble
focusing or recalling details, due to trauma.\570\ One commenter
proposed a detailed alternate process for starting investigations,
under which the complainant would orally describe an incident to a
compliance team, the compliance team would inform the complainant of
the option for signing a written statement initiating an investigation,
and the complainant would have 72 hours to decide whether to sign such
a written statement.
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\570\ Commenters cited: Russell W. Strand, The Forensic
Experiential Trauma Interview (FETI), https://responsesystemspanel.whs.mil/Public/docs/meetings/20130627/01_Victim_Overview/Rumburg_FETI_Interview.pdf.
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[[Page 30130]]
Commenters argued that any report of a sexual assault, to any
school or college employee, whether oral or written, formal or
informal, should be sufficient to start an investigation because
otherwise a significant number of sexual assaults will go un-
investigated, and because schools could ignore openly hostile
environments just because no one filed a formal document. Commenters
argued there are many ways schools can investigate a report without
involving the victim, so victims should never be forced to file
complaints but schools should still investigate all credible reports.
Commenters argued that the burden of starting an investigation should
be on the school, not on the survivor to jump through the hoop of
filing a formal complaint. Commenters argued that in order to maintain
a safe, non-discriminatory learning environment, institutions must not
be confined by the formalities of signatures on a complaint before they
are able to move forward with an investigation. Commenters argued that
if schools can ignore known sexual harassment just because no one has
filed a formal complaint, institutions of higher education will have
even less incentive to try to stop sex abuse scandals by their
employees. Commenters argued that it is expecting a student to undergo
too much risk to file a written complaint against a faculty member who
is sexually abusing the student, so more students will fall prey to
serial abuse by faculty.
Commenters argued that the Sec. 106.30 definition of ``formal
complaint'' would preclude third parties (such as teachers, witnesses,
or school employees other than the Title IX Coordinator) from filing
complaints to initiate grievance procedures, representing a departure
from past Department guidance and reducing schools' efforts to redress
offending behavior. Other commenters supported restricting third
parties from filing formal complaints because confiding in a resident
advisor or professor should not trigger an obligation for that employee
to file a formal complaint on the victim's behalf. Some commenters
argued that no investigation should be initiated without the consent of
the victim because the victim should be the one with the power to
initiate a formal process, and victims should be given the opportunity
to be educated on the law, process, and rights of victims.
Commenters argued that the burden of filing a formal complaint
would fall especially hard on K-12 students because the proposed safe
harbor in Sec. 106.44(b)(2) only ensured that students in higher
education would receive supportive measures in the absence of a formal
complaint, so younger students, who may not even be capable of writing
down a description of sexual harassment, would get no help at all.
Discussion: The Department appreciates commenters' concerns that
requiring complainants who wish to initiate an investigation to sign a
written document may seem like an unnecessary ``paperwork'' procedure,
or that a victim may find it retraumatizing to write out details of a
sexual harassment experience. However, absent a written document signed
by the complainant alleging sexual harassment against a respondent and
requesting an investigation,\571\ the Department believes that
complainants and recipients may face confusion about whether an
investigation is initiated because the complainant desires it, because
the Title IX Coordinator believes it necessary, both, or neither. We
reiterate that when a recipient has actual knowledge of sexual
harassment, the recipient must offer supportive measures to the
complainant whether or not a formal complaint is ever filed. However, a
complainant's decision to initiate a grievance process should be clear,
to avoid situations where a recipient involves a complainant in a
grievance process when that was neither what the complainant wanted nor
what the Title IX Coordinator believed was necessary. A grievance
process is a weighty, serious process with consequences that affect the
complainant, the respondent, and the recipient. Clarity as to the
nature and scope of the investigation necessitates that a formal
complaint initiating the grievance process contain allegations of
sexual harassment against the respondent, so the recipient may then
prepare the written notice of allegations to be sent to both parties
(under Sec. 106.45(b)(2)), which advises both parties of essential
details of allegations under investigation, and of important rights
available to both parties under the grievance process.
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\571\ As discussed herein, the final regulations broaden the
meaning of a ``document filed by a complainant'' to include a
document or electronic submission (such as an email, or use of an
online portal provided for this purpose by the recipient) that
contains the complainant's physical or digital signature, or
otherwise indicates that the complainant is the person filing the
formal complaint.
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The Department acknowledges the principle, followed by some
institutions and State protocols, that avoids asking victims for
written statements or avoids asking victims to recount allegations more
than once. We reiterate that a complainant may report (once, and
verbally) in order to require a recipient to respond promptly by
offering supportive measures. Reports of sexual harassment (whether
made by the alleged victim themselves or by any third party) do not
need to be in writing, much less in the form of a signed document.\572\
The final regulations desire to ensure that every complainant receives
this prompt, supportive response regardless of whether a grievance
process is ever initiated. The formal complaint requirement ensures
that a grievance process is the result of an intentional decision on
the part of either the complainant or the Title IX Coordinator. A
complainant (or a third party) may report sexual harassment to a school
for a different purpose than desiring an investigation. Thus, if an
investigation is an action the complainant desires, the complainant
must file a written document requesting an investigation. No written
document is required to put a school on notice (i.e., convey actual
knowledge) of sexual harassment triggering the recipient's response
obligations under Sec. 106.44(a).
---------------------------------------------------------------------------
\572\ Section 106.8(a).
---------------------------------------------------------------------------
The Sec. 106.30 definition of ``formal complaint'' requires a
document ``alleging sexual harassment against a respondent,'' but
contains no requirement as to a detailed statement of facts. Whether or
not statements made during a Title IX grievance process might be used
in subsequent litigation, clarity, predictability, and fairness in the
Title IX process require both parties, and the recipient, to understand
that allegations of sexual harassment have been made against the
respondent before initiating a grievance process. We reiterate that no
written statement is required in order to receive supportive
measures,\573\ and that there is no time limit on a complainant's
decision to file a formal complaint, so the decision to sign and file a
formal complaint need not occur in the immediate aftermath of sexual
violence when a survivor may have the greatest difficulty focusing,
recalling details, or making decisions. A complainant may disclose or
report immediately (if the complainant desires) to receive supportive
measures and receive information about the option for filing a formal
complaint, and that disclosure or report may be verbal, in writing, or
by any other means of giving
[[Page 30131]]
notice.\574\ But such a disclosure or report may be entirely separate
from a complainant's later decision to pursue a grievance process by
filing a formal complaint. We disagree with a commenter's suggestion to
require a complainant to decide within 72 hours whether to file a
formal complaint; even with the detailed steps in such a process
suggested by the commenter, for reasons explained above it does not
further Title IX's non-discrimination mandate to impose a time limit on
a complainant's decision to file a formal complaint.
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\573\ We have revised Sec. 106.8(a) to specify that any person
may report sexual harassment using the Title IX Coordinator's
contact information (including during non-business hours by using
the listed telephone number or email address) ``or by any other
means that results in the Title IX Coordinator receiving the
person's verbal or written report.''
\574\ See Sec. 106.30 defining ``actual knowledge'' to mean
``notice'' to the Title IX Coordinator, to any official with
authority to take corrective action, or to any elementary or
secondary school employee, where ``notice'' includes (but is not
limited to) a report of sexual harassment to the Title IX
Coordinator as described in Sec. 106.8(a).
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The Department disagrees that every report of a sexual assault to
any recipient employee should be sufficient to start an investigation.
We believe that every allegation of sexual harassment of which the
recipient becomes aware \575\ must be responded to, promptly and
meaningfully, including by offering supportive measures to the person
alleged to be the victim of conduct that could constitute sexual
harassment.\576\ However, we believe that complainants should retain as
much control as possible \577\ over whether a school's response
includes involving the complainant in a grievance process. When a
complainant believes that investigation and adjudication of allegations
is in the complainant's best interest, the complainant should be able
to require the recipient to initiate a grievance process.\578\ When a
Title IX Coordinator believes that with or without the complainant's
desire to participate in a grievance process, a non-deliberately
indifferent response to the allegations requires an investigation, the
Title IX Coordinator should have the discretion to initiate a grievance
process. Not investigating every report of sexual harassment will not
allow schools to ignore complainants or ignore ``openly hostile
environments,'' because Sec. 106.44(a) requires the recipient to
respond promptly in a manner that is not unreasonable in light of the
known circumstances, to every instance of alleged sexual harassment in
the recipient's education program or activity of which the recipient
becomes aware, including offering supportive measures to the
complainant with or without a grievance process. Part of whether a
decision not to investigate is ``clearly unreasonable'' may include a
Title IX Coordinator's communication with the complainant to understand
the complainant's desires with respect to a grievance process against
the respondent. When a Title IX Coordinator determines that an
investigation is necessary even where the complainant (i.e., the person
alleged to be the victim) does not want such an investigation, the
grievance process can proceed without the complainant's participation;
however, the complainant will still be treated as a party in such a
grievance process. The grievance process will therefore impact the
complainant even if the complainant refuses to participate. The
Department desires to respect a complainant's autonomy as much as
possible and thus, if a grievance process is initiated against the
wishes of the complainant, that decision should be reached thoughtfully
and intentionally by the Title IX Coordinator, not as an automatic
result that occurs any time a recipient has notice that a complainant
was allegedly victimized by sexual harassment. We do not believe this
places ``the burden'' of starting an investigation on the complainant.
Rather, the final regulations enable a complainant, or the Title IX
Coordinator, to initiate an investigation. The final regulations
appropriately leave recipients flexibility to investigate allegations
even where the complainant does not wish to file a formal complaint
where initiating a grievance process is not clearly unreasonable in
light of the known circumstances (including the circumstances under
which a complainant does not desire an investigation to take place), so
that recipients may, for example, pursue a grievance process against a
potential serial sexual perpetrator. The recipient is required to
document its reasons why its response to sexual harassment was not
deliberately indifferent, under Sec. 106.45(b)(10), thereby
emphasizing the need for a decision to initiate a grievance process
over the wishes of a complainant to be intentionally, carefully made
taking into account the circumstances of each situation.
---------------------------------------------------------------------------
\575\ As discussed above, a recipient is charged with actual
knowledge of sexual harassment when notice is given to a Title IX
Coordinator, an official with authority to take corrective action,
or any elementary or secondary school employee. Sec. 106.30
(defining ``actual knowledge'').
\576\ Section 106.44(a) Sec. 106.30 (defining ``complainant'').
\577\ A complainant's control over a school's response may be
circumscribed by a recipient's obligations under laws other than
these final regulations; for example, State laws mandating schools
to report suspected child sexual abuse to law enforcement or child
welfare authorities. However, these final regulations protect a
complainant against being intimidated, threatened, coerced, or
discriminated against for participating, or refusing to participate,
in a Title IX grievance process. Sec. 106.71.
\578\ Section 106.6(g) (acknowledging that where a parent or
guardian has the legal right to act on a complainant's behalf, the
parent or guardian may file a formal complaint on behalf of the
complainant).
---------------------------------------------------------------------------
The Sec. 106.30 definition of ``formal complaint'' does preclude
third parties from filing formal complaints.\579\ For the reasons
discussed above, we believe that respecting a complainant's autonomy to
the greatest degree possible means that an investigation against a
complainant's wishes or without a complainant's willingness to
participate, should happen only when the Title IX Coordinator has
determined that the investigation is necessary under the particular
circumstances.\580\ We reiterate that any person may disclose or report
a sexual harassment incident, whether that person is the complainant
(i.e., the individual who is alleged to be the victim) or any third
party, such as a teacher, witness, parent, or school employee.\581\
When the disclosure or report gives notice of sexual harassment
allegations to a Title IX Coordinator,\582\ an official with authority
to institute corrective measures on the recipient's behalf, or any
elementary and secondary school employee,\583\ the recipient must
respond promptly in a non-deliberately indifferent manner. Thus, even
if neither the complainant nor the Title IX Coordinator decides to file
a formal complaint, the recipient must still respond to the reported
sexual harassment incident by offering supportive measures to the
complainant and informing the complainant of the option of filing a
formal complaint.\584\
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\579\ Cf. Sec. 106.6(g).
\580\ See Michelle L. Meloy & Susan L. Miller, The Victimization
of Women: Law, Policies, and Politics 147-48 (Oxford University
Press 2010) (anti-violence policies must embrace ``notions of victim
empowerment for self-protection by allowing victims to drop criminal
charges''). The Title IX equivalent of this premise is that the
Department should not require schools to investigate in the absence
of a complainant's consent. The formal complaint definition in Sec.
106.30 ensures that schools must investigate when the complainant
desires that action (see also Sec. 106.44(b)(1)), and ensures that
a school only overrides a complainant's desire for the school not to
investigate if the Title IX Coordinator has determined on behalf of
the recipient that an investigation is needed, and in such
circumstances the final regulations protect the complainant's right
to refuse to participate in the grievance process. Sec. 106.71.
\581\ Section 106.8(a) (expressly stating that any person may
report sexual harassment using the listed contact information for
the Title IX Coordinator, whether or not the person reporting is the
person alleged to be the victim of conduct that could constitute
sexual harassment).
\582\ Section 106.30 (defining ``actual knowledge'' and
expressly stating that ``notice'' includes a report to the Title IX
Coordinator as described in Sec. 106.8(a)).
\583\ Section 106.30 (defining ``actual knowledge'').
\584\ Sections 106.44(a), 106.44(b)(1).
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[[Page 30132]]
We disagree that no formal complaint should ever be filed without
the consent of the victim, because some circumstances may require a
recipient (via the Title IX Coordinator) to initiate an investigation
and adjudication of sexual harassment allegations in order to protect
the recipient's educational community or otherwise avoid being
deliberately indifferent to known sexual harassment. However, we have
added Sec. 106.71 to prohibit retaliation against any person
exercising rights under Title IX, including the right not to
participate in a Title IX grievance process, so that a complainant is
protected from being coerced, intimated, threatened, or otherwise
discriminated against based on the complainant's refusal to participate
in a grievance process. We agree that complainants should be given the
opportunity to be informed of the law, process, and victims' rights,
and the final regulations require recipients to notify students,
employees, and parents of elementary and secondary school students
(among others) of the recipient's Title IX non-discrimination policy,
contact information for the Title IX Coordinator, how to report sexual
harassment, and the recipient's grievance process for formal complaints
of sexual harassment.\585\ The final regulations further require
recipients to offer supportive measures to a complainant, discuss with
each individual complainant the availability of supportive measures
with or without the filing of a formal complaint, and explain to the
complainant the process for filing a formal complaint.\586\
---------------------------------------------------------------------------
\585\ Section 106.8.
\586\ Section 106.44(a).
---------------------------------------------------------------------------
In response to commenters' concerns that elementary and secondary
school students might not receive supportive measures in the absence of
a formal complaint because the supportive measures safe harbor in
proposed Sec. 106.44(b)(2) applied only to postsecondary institutions,
we have removed the safe harbor in proposed Sec. 106.44(b)(2), and
revised Sec. 106.44(a) to require all recipients to offer supportive
measures to every complainant, obviating the need for a ``safe harbor''
that results from providing supportive measures. As to all recipients,
the final regulations enable the complainant (i.e., the individual who
is alleged to be the victim) or the Title IX Coordinator, to file a
formal complainant that initiates a grievance process. As discussed
below in this section of the preamble, the final regulations also
acknowledge the legal right of a parent to act on behalf of their
child, addressing the concern that children are expected to write or
sign a formal complaint.
Changes: We have removed the supportive measures safe harbor in
proposed Sec. 106.44(b)(2) and have revised Sec. 106.44(a) to require
all recipients to offer supportive measures to each complainant
irrespective of whether a formal complaint is ever filed. We have added
Sec. 106.6(g) acknowledging the legal rights of parents or guardians
to act on behalf of a complainant, respondent, or other individual,
including but not limited to the filing of a formal complaint. We have
added Sec. 106.71 to prohibit retaliation against any person
exercising rights under Title IX, including the right not to
participate in a Title IX grievance process.
Anonymous Reporting and Anonymous Filing of Formal Complaints
Comments: Commenters requested clarification as to whether the
proposed rules discouraged or prohibited anonymous reporting; some
commenters asserted that anonymous reports may disclose valid
information about openly hostile environments on campus that should be
investigated even though the reporting party is anonymous. Commenters
argued that disallowing confidential and anonymous reporting would
deter reporting because research shows that concern about
confidentiality is one reason why victims of sexual crimes do not
report.\587\ Commenters argued that requiring a signed statement may
act as a deterrent to reporting, citing to a report finding that
several police departments have permitted victims to report anonymously
in an effort to allow a victim more options and control over whether to
participate in an investigation, and that police find it advantageous
because they can learn more about crimes committed in the area, and
anonymous reporting may allow them to track a predator who commits
multiple offenses.\588\ Commenters argued that prohibiting victims from
filing formal complaints anonymously would conflict with State law
(such as in Illinois, and Texas) where institutions are required to
provide an option for anonymous reporting and State law (such as Texas)
that requires electronic reporting to be an option.
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\587\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute of Justice, Sexual Assault on
Campus: What Colleges and Universities Are Doing About It (2005).
\588\ Commenters cited: Human Rights Watch, Improving Police
Response to Sexual Assault (2013).
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Discussion: The Department appreciates the opportunity to clarify
that the final regulations do not prohibit recipients from implementing
anonymous (sometimes called ``blind'') reporting options. Anonymous or
blind reporting options that have been implemented by law enforcement
agencies, for example, may enable the police to gain more information
about crimes and may assist in identifying patterns of repeat
offenders, while providing victims with ``another option for healing--
an option that falls in between not reporting the crime, and being
involved in a full criminal investigation.'' \589\ As commenters noted,
anonymous reports sometimes disclose valid information about sexual
harassment on campus. Under the final regulations, when a recipient has
actual knowledge of alleged sexual harassment in the recipient's
education program or activity the final regulations require a recipient
to respond in a manner that is not clearly unreasonable in light of the
known circumstances. A recipient has actual knowledge whenever notice
of sexual harassment is given to the Title IX Coordinator, an official
with authority to institute corrective measures, or any elementary and
secondary school employee.\590\ The final regulations do not restrict
the form that ``notice'' might take, so notice conveyed by an anonymous
report may convey actual knowledge to the recipient and trigger a
recipient's response obligations. A recipient's non-deliberately
indifferent response must include offering supportive measures to a
complainant (i.e., person alleged to be the victim of sexual
harassment).\591\ A recipient's ability to offer supportive measures to
a complainant, or to consider whether to initiate a grievance process
against a respondent, will be affected by whether the report disclosed
the identity of the complainant or respondent. In order for a recipient
to provide supportive measures to a complainant, it is not possible for
the complainant to remain anonymous because at least one school
official (e.g., the Title IX Coordinator) will need to know the
complainant's identity in order to offer and implement any supportive
measures. Section 106.30 defining ``supportive measures'' directs the
recipient to maintain as confidential any supportive measures provided
to
[[Page 30133]]
either a complainant or a respondent, to the extent that maintaining
confidentiality does not impair the recipient's ability to provide the
supportive measures. A complainant (or third party) who desires to
report sexual harassment without disclosing the complainant's identity
to anyone may do so, but the recipient will be unable to provide
supportive measures in response to that report without knowing the
complainant's identity. If a complainant desires supportive measures,
the recipient can, and should, keep the complainant's identity
confidential (including from the respondent), unless disclosing the
complainant's identity is necessary to provide supportive measures for
the complainant (e.g., where a no-contact order is appropriate and the
respondent would need to know the identity of the complainant in order
to comply with the no-contact order, or campus security is informed
about the no-contact order in order to help enforce its terms).
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\589\ National Resource Center on Domestic Violence, VAWnet,
Introduction to Sabrina Garcia & Margaret Henderson, Blind Reporting
of Sexual Violence, 68 FBI Law Enforcement Bulletin 6 (June 1999),
https://vawnet.org/material/blind-reporting-sexual-violence.
\590\ Section 106.30 (defining ``actual knowledge'').
\591\ Section 106.44(a).
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Separate and apart from whether a grievance process is initiated,
the final regulations require recipients to respond non-deliberately
indifferently even where sexual harassment allegations were conveyed to
the recipient via an anonymous report (made by the complainant
themselves, or by a third party), including offering the complainant
supportive measures if the anonymous report identified a complainant
(i.e., person alleged to be a victim of sexual harassment). Nothing in
the final regulations precludes a recipient from implementing reporting
systems that facilitate or encourage an anonymous or blind reporting
option. Thus, recipients who are obligated under State laws to offer
anonymous reporting options may not face any conflict with obligations
under the final regulations. The final regulations do not preclude
recipients from offering electronic reporting systems, so recipients
obligated to do so under State laws may not face any conflict with
obligations under the final regulations. To ensure that complainants
(and third parties, because any person may report sexual harassment)
have clear, accessible reporting options, we have revised Sec.
106.8(a) to expressly state that any person may report sexual
harassment using the Title IX Coordinator's listed contact information,
and such a report may be made at any time (including during non-
business hours) by using the listed telephone number or email address
(or by mail to the listed office address) for the Title IX Coordinator.
Recipients may additionally offer other types of electronic reporting
systems.
A formal complaint initiates a grievance process (i.e., an
investigation and adjudication of allegations of sexual harassment). A
complainant (i.e., a person alleged to be the victim of sexual
harassment) cannot file a formal complaint anonymously because Sec.
106.30 defines a formal complaint to mean a document or electronic
submission (such as an email or using an online portal provided for
this purpose by the recipient) that contains the complainant's physical
or digital signature or otherwise indicates that the complainant is the
person filing the formal complaint. The final regulations require a
recipient to send written notice of the allegations to both parties
upon receiving a formal complaint. The written notice of allegations
under Sec. 106.45(b)(2) must include certain details about the
allegations, including the identity of the parties, if known.
Where a complainant desires to initiate a grievance process, the
complainant cannot remain anonymous or prevent the complainant's
identity from being disclosed to the respondent (via the written notice
of allegations). Fundamental fairness and due process principles
require that a respondent knows the details of the allegations made
against the respondent, to the extent the details are known, to provide
adequate opportunity for the respondent to respond. The Department does
not believe this results in unfairness to a complainant. Bringing
claims, charges, or complaints in civil or criminal proceedings
generally requires disclosure of a person's identity for purposes of
the proceeding. Even where court rules permit a plaintiff or victim to
remain anonymous or pseudonymous, the anonymity relates to
identification of the plaintiff or victim in court records that may be
disclosed to the public, not to keeping the identity of the plaintiff
or victim unknown to the defendant.\592\ The final regulations ensure
that a complainant may obtain supportive measures while keeping the
complainant's identity confidential from the respondent (to the extent
possible while implementing the supportive measure), but in order for a
grievance process to accurately resolve allegations that a respondent
has perpetrated sexual harassment against a complainant, the
complainant's identity must be disclosed to the respondent, if the
complainant's identity is known. However, the identities of
complainants (and respondents, and witnesses) should be kept
confidential from anyone not involved in the grievance process, except
as permitted by FERPA, required by law, or as necessary to conduct the
grievance process, and the final regulations add Sec. 106.71 to impose
that expectation on recipients.\593\
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\592\ See, e.g., Jayne S. Ressler, #WorstPlaintiffEver: Popular
Public Shaming and Pseudonymous Plaintiffs, 84 Tenn. L. Rev. 779,
828 (2017) (arguing that Federal and State courts should adopt
broader rules allowing plaintiffs to file civil lawsuits anonymously
or pseudonymously, and emphasizing that this anonymity relates to
whether a plaintiff is named in court records that may be viewed by
the public, but does not affect the defendant's knowledge of the
identity of the plaintiff) (``The plaintiff's anonymity would extend
only to court filings and any other documents that would be released
to the public. In other words, the defendant would have the same
information about the plaintiff had the plaintiff filed the case
under her own name.'').
\593\ Section 106.71(a) (prohibiting retaliation and providing
in relevant part that the recipient must keep confidential the
identity of any individual who has made a report or complaint of sex
discrimination, including any individual who has made a report or
filed a formal complaint of sexual harassment, any complainant, any
individual who has been reported to be the perpetrator of sex
discrimination, any respondent, and any witness except as may be
permitted by FERPA, or required by law, or to the extent necessary
to carry out the purposes of 34 CFR part 106, including the conduct
of any investigation, hearing, or judicial proceeding arising
thereunder).
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When a formal complaint is signed by a Title IX Coordinator rather
than filed by a complainant, the written notice of allegations in Sec.
106.45(b)(2) requires the recipient to send both parties details about
the allegations, including the identity of the parties if known, and
thus, if the complainant's identity is known it must be disclosed in
the written notice of allegations. However, if the complainant's
identity is unknown (for example, where a third party has reported that
a complainant was victimized by sexual harassment but does not reveal
the complainant's identity, or a complainant has reported anonymously),
then the grievance process may proceed if the Title IX Coordinator
determines it is necessary to sign a formal complaint, even though the
written notice of allegations does not include the complainant's
identity.\594\
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\594\ If the complainant's identity is discovered during the
investigation, the recipient would need to send supplemental notice
of allegations to the parties and treat the complainant as a party
throughout the grievance process. See Sec. 106.45(b)(2)(ii).
Without a complainant (i.e., a person alleged to be the victim of
sexual harassment) at some point being identified during an
investigation, a recipient may find itself unable to meet the
recipient's burden to gather evidence sufficient to reach a
determination regarding responsibility. For example, without knowing
a complainant's identity a recipient may not be able to gather
evidence necessary to establish elements of conduct defined as
``sexual harassment'' under Sec. 106.30, such as whether alleged
conduct was unwelcome, or without the consent of the victim. In such
a situation, the final regulations provide for discretionary
dismissal of the formal complaint, or allegations therein. Sec.
106.45(b)(3)(ii). A recipient's decision (made via the Title IX
Coordinator) to initiate a grievance process over the wishes of a
complainant, or where the complainant does not wish to participate,
or where the complainant's identity is unknown, is evaluated under
the deliberate indifference standard set forth in Sec. 106.44(a).
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[[Page 30134]]
The Department agrees with commenters that concerns about
confidentiality often affect a victim's willingness to report sexual
assault. The final regulations aim to give complainants as much control
as possible over: Whether and how to report that the complainant has
been victimized by sexual harassment; whether, or what kinds, of
supportive measures may help the complainant maintain equal access to
education; and whether to initiate a grievance process against the
respondent. Each of the foregoing decisions can be made by a
complainant with awareness of the implications for the complainant's
anonymity or confidentiality. The final regulations ensure that
complainants have any or all of the following options: the ability to
report anonymously (though a recipient will be unable to provide
supportive measures without knowing the complainant's identity); the
ability to report and receive supportive measures while keeping the
complainant's identity confidential from the respondent (unless the
respondent must know the complainant's identity in order for the
recipient to implement a supportive measure); and the right to file a
formal complaint against the respondent, realizing that doing so means
the respondent will know the complainant's identity, yet as to people
outside the grievance process the complainant's identity must be kept
confidential except as permitted by FERPA, required by law, or as
necessary to conduct the grievance process.
Changes: We have added Sec. 106.71(a) requiring recipients to keep
confidential the identity of any individual who has made a report or
complaint of sex discrimination, including any individual who has made
a report or filed a formal complaint of sexual harassment, any
complainant, any individual who has been reported to be the perpetrator
of sex discrimination, any respondent, and any witness, except as
permitted by FERPA, required by law, or as necessary to carry out the
purposes of 34 CFR part 106 to conduct any investigation, hearing, or
judicial proceeding arising thereunder, which includes a grievance
process.
Officials Other Than the Title IX Coordinator Filing a Formal Complaint
Comments: Commenters asked for clarification as to whether
``officials with authority to institute corrective measures on behalf
of the recipient'' are authorized to file a formal complaint, or
whether the Title IX Coordinator is the sole employee authorized to
file a formal complaint. Commenters requested that Sec. 106.30 be
modified so that the complainant, the Title IX Coordinator, or ``any
institutional administrator'' can file a formal complaint; commenters
argued that there are many administrators who have a significant
interest in ensuring that the recipient investigates potential
violations of school policy. Commenters requested clarification as to
whether by filing a formal complaint, the Title IX Coordinator becomes
a party in the investigation, and if this means that the Title IX
Coordinator must be given the rights that the grievance procedures give
to complainants, or if not, then commenters wondered who would be
treated as the complainant in cases where the victim did not sign the
formal complaint. Commenters argued that a Title IX Coordinator who
signs a formal complaint initiating grievance procedures against a
respondent is no longer neutral or impartial, is biased, and/or has a
conflict of interest, especially where the Title IX Coordinator will
also be the investigator.
Discussion: We appreciate the opportunity to clarify that the final
regulations do not permit a formal complaint to be filed or signed by
any person other than the complainant (i.e., the person alleged to be
the victim of sexual harassment or the alleged victim's parent or
guardian on the alleged victim's behalf, as appropriate) or the Title
IX Coordinator. While it is true that school administrators other than
the Title IX Coordinator may have significant interests in ensuring
that the recipient investigate potential violations of school policy,
for reasons explained above, the decision to initiate a grievance
process in situations where the complainant does not want an
investigation or where the complainant intends not to participate
should be made thoughtfully and intentionally, taking into account the
circumstances of the situation including the reasons why the
complainant wants or does not want the recipient to investigate. The
Title IX Coordinator is trained with special responsibilities that
involve interacting with complainants, making the Title IX Coordinator
the appropriate person to decide to initiate a grievance process on
behalf of the recipient. Other school administrators may report sexual
harassment incidents to the Title IX Coordinator, and may express to
the Title IX Coordinator reasons why the administrator believes that an
investigation is warranted, but the decision to initiate a grievance
process is one that the Title IX Coordinator must make.\595\
---------------------------------------------------------------------------
\595\ This does not preclude recipient employees or
administrators other than the Title IX Coordinator from implementing
supportive measures for the complainant (or for a respondent). The
final regulations, Sec. 106.30 defining ``supportive measures,''
require that the Title IX Coordinator is responsible for the
effective implementation of supportive measures; however, this does
not preclude other recipient employees or administrators from
implementing supportive measures for a complainant (or a respondent)
and in fact, effective implementation of most supportive measures
requires the Title IX Coordinator to coordinate with administrators,
employees, and offices outside the Title IX office (for example,
notifying campus security of the terms of a no-contact order, or
working with the school registrar to appropriately reflect a
complainant's withdrawal from a class, or communicating with a
professor that a complainant needs to re-take an exam).
---------------------------------------------------------------------------
The Department does not view a Title IX's Coordinator decision to
sign a formal complaint as being adverse to the respondent. A Title IX
Coordinator's decision to sign a formal complaint is made on behalf of
the recipient (for instance, as part of the recipient's obligation not
to be deliberately indifferent to known allegations of sexual
harassment), not in support of the complainant or in opposition to the
respondent or as an indication of whether the allegations are credible,
have merit, or whether there is evidence sufficient to determine
responsibility. To clarify this, we have removed the phrase ``or on
whose behalf the Title IX Coordinator has filed a formal complaint''
from the proposed rules' definition of ``complainant'' in Sec. 106.30.
We have also revised the Sec. 106.30 definition of ``formal
complaint'' to state that when the Title IX Coordinator signs a formal
complaint, the Title IX Coordinator does not become a complainant, or
otherwise a party, to a grievance process, and must still serve free
from bias or conflict of interest for or against any party.
In order to ensure that a recipient has discretion to investigate
and adjudicate allegations of sexual harassment even without the
participation of a complainant, in situations where a grievance process
is warranted, the final regulations leave that decision in the
discretion of the recipient's Title IX Coordinator. However, deciding
that allegations warrant an investigation does not necessarily show
bias or prejudgment of the facts for or against the complainant or
respondent. The
[[Page 30135]]
definition of conduct that could constitute sexual harassment, and the
conditions necessitating a recipient's response to sexual harassment
allegations, are sufficiently clear that a Title IX Coordinator may
determine that a fair, impartial investigation is objectively warranted
as part of a recipient's non-deliberately indifferent response, without
prejudging whether alleged facts are true or not. Even where the Title
IX Coordinator is also the investigator,\596\ the Title IX Coordinator
must be trained to serve impartially,\597\ and the Title IX Coordinator
does not lose impartiality solely due to signing a formal complaint on
the recipient's behalf.
---------------------------------------------------------------------------
\596\ Section 106.45(b)(7) specifies that the decision-maker
must be a different person from the Title IX Coordinator or
investigator, but the final regulations do not preclude a Title IX
Coordinator from also serving as the investigator.
\597\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------
Changes: We have revised the Sec. 106.30 definition of ``formal
complaint'' to mean a document ``filed by a complainant or signed by
the Title IX Coordinator'' and clarified that when a Title IX
Coordinator signs a formal complaint, the Title IX Coordinator is not a
complainant or otherwise a party during the grievance process, and the
Title IX Coordinator must comply with these final regulations including
the obligation in Sec. 106.45(b)(1)(iii) to be free from bias or
conflict of interest. We have also revised the definition of
``complainant'' in Sec. 106.30 to remove the phrase ``or on whose
behalf the Title IX Coordinator has filed a formal complaint.''
Complexity of a Document Labeled ``Formal Complaint''
Comments: Commenters argued that the document initiating a
grievance process should be labeled something other than a ``formal
complaint'' because calling it a formal complaint makes it sound as
though the survivor is complaining, or whining, about having been
assaulted.
Commenters argued that requiring signed complaints is one aspect of
the proposed rules that would make the Title IX campus system too much
like the legal system, and survivors already feel deterred from
pursuing justice through criminal and legal systems. Commenters argued
that the Sec. 106.30 definition of formal complaint was so legalistic
that lawyers would have to get involved in every Title IX matter.
Commenters argued that students may think they have triggered a
grievance procedure by reporting to the Title IX Coordinator only to
find out that no investigation has begun because the student did not
file a document meeting the requirements of a ``formal complaint.''
Commenters argued that requiring a complainant to sign a written
document with specific language about ``requesting initiation of a
grievance procedure'' would result in some complainants believing they
had filed a formal complaint when the exact paperwork was not filled
out or signed correctly. Commenters asked whether a recipient would be
deliberately indifferent if the recipient failed to tell a complainant
who intended to file a formal complaint that the document filed failed
to meet the requirements in Sec. 106.30 and thus no grievance
procedures had begun. Commenters requested clarification as to how a
Title IX Coordinator should treat an ``informal complaint'' that did
not meet the precise definition of a formal complaint. Commenters
argued that the definition of ``formal complaint'' means that a
recipient could dismiss a meritorious complaint, or refuse to
investigate, solely for immaterial technical reasons, such as the
document not being signed or failing to include specific language
``requesting initiation'' of the grievance procedures. Commenters
argued that the definition of ``formal complaint'' would provide an
arbitrary bureaucratic loophole that would excuse recipients for their
willful indifference when paperwork is not completed perfectly.
Commenters argued that the Sec. 106.30 definition of ``formal
complaint'' would make it difficult or impossible for some students to
file a formal complaint. Commenters stated, for example, that young
children may not have learned how to write. Commenters stated that, for
example, individuals with certain disabilities may have difficulty
communicating in writing. Commenters suggested that the definition be
modified so that a formal complaint is ``signed (or affirmed via
another effective communication modality)'' because otherwise, a
student with a disability--especially with a communication disability
or disorder--may be unable to file. Commenters suggested the definition
be expanded to accommodate the needs of individuals with disabilities
by accepting different communication modalities including oral, manual,
AAC (augmentative and alternative communication) techniques, and
assistive technologies.
Discussion: The final regulations continue to use the phrase
``formal complaint'' to describe the document that initiates a
grievance process resolving sexual harassment allegations. The word
``complaint'' is commonly used in proceedings designed to resolve
disputed allegations, and the word is used neutrally to describe that
the person has brought allegations or charges of some kind, not
pejoratively to imply that a person is unjustifiably ``complaining'' or
``whining.'' \598\
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\598\ For example, OCR refers to a ``complainant'' as a person
who files a ``complaint'' with OCR alleging a civil rights law
violation. E.g., U.S. Dep't. of Education, Office for Civil Rights,
How the Office for Civil Rights Handles Complaints (Nov. 2018),
https://www2.ed.gov/about/offices/list/ocr/complaints-how.html.
---------------------------------------------------------------------------
``Formal complaint'' is a specific term used in these final
regulations to describe a document that initiates a grievance process
against a respondent alleging Title IX sexual harassment. A grievance
process that is consistent, transparent, and fair is necessarily a
formal process, and parties should be apprised that initiating a
grievance process is a serious matter. This does not necessitate
involvement of lawyers or convert a recipient's Title IX grievance
process into a court proceeding. However, we agree with commenters that
the way that a formal complaint was described in proposed Sec. 106.30
\599\ was more restrictive than necessary and did not take into account
the common use of electronic or digital transmissions. We have revised
and simplified the definition of a ``formal complaint'' to mean ``a
document filed by the complainant or signed by the Title IX Coordinator
alleging sexual harassment against a respondent and requesting that the
recipient investigate the allegation of sexual harassment.''
---------------------------------------------------------------------------
\599\ Proposed Sec. 106.30 defined ``formal complaint'' as ``a
document signed by a complainant or by the Title IX Coordinator
alleging sexual harassment against a respondent and requesting
initiation of the recipient's grievance procedures consistent with
Sec. 106.45.''
---------------------------------------------------------------------------
The Sec. 106.30 definition of a formal complaint describes the
purpose of the document, not requirements for specific language that
can be used as a bureaucratic loophole for a recipient to avoid
initiating a grievance process. The purpose of the formal complaint is
to clarify that the complainant (or Title IX Coordinator) believes that
the recipient should investigate allegations of sexual harassment
against a respondent. The Department does not assume that recipients
will treat complainants attempting to file a formal complaint
differently from students who attempt to file similar school paperwork;
for example, when a form is missing a signature, recipients generally
inquire with the student to correct the paperwork. Recipients are under
an obligation under Sec. 106.44(a) to respond promptly in a way that
is not clearly unreasonable in light of the known circumstances and
this obligation
[[Page 30136]]
extends to the circumstances under which a recipient processes a formal
complaint (or a document or communication that purports to be a formal
complaint). Under the final regulations, recipients also must document
the basis for the recipient's conclusion that the recipient's response
was not deliberately indifferent; \600\ this provides an additional
safeguard against a recipient intentionally treating imperfect
paperwork as grounds for refusing to take action upon receipt of a
document that purports to be a formal complaint.
---------------------------------------------------------------------------
\600\ Section 106.45(b)(10)(ii).
---------------------------------------------------------------------------
We appreciate commenters' concerns that some students may be
incapable of signing a document (for example, young students who have
not learned how to write, or students with certain disabilities). To
address these concerns, we have revised the Sec. 106.30 definition of
``formal complaint'' to describe a ``document signed by a complainant''
as ``a document or electronic submission (such as by electronic mail or
through an online portal provided for this purpose by the recipient)
that contains the complainant's physical or digital signature, or
otherwise indicates that the complainant is the person filing the
formal complaint.'' We have also added Sec. 106.6(g) recognizing the
legal rights of parents and guardians to act on behalf of complainants,
including with respect to filing a formal complaint of sexual
harassment.
Changes: We have revised the Sec. 106.30 definition of ``formal
complaint'' to describe a document, filed by a complainant or signed by
a Title IX Coordinator, alleging sexual harassment, against a
respondent, and requesting that the recipient investigate the
allegation of sexual harassment. We have also revised the Sec. 106.30
definition of ``formal complaint'' to explain that the phrase
``document filed by a complainant'' refers to a document or electronic
submission (such as an email or through an online portal provided for
this purpose by the recipient) that contains the complainant's physical
or digital signature, or otherwise indicates that the complainant is
the person filing the formal complaint.
Parents' and Guardians' Rights To File a Formal Complaint
Comments: Commenters asserted that the proposed rules did not
acknowledge that parents can file formal complaints on behalf of minor
students and that the proposed rules therefore expect, for example, a
third grade student to write down and sign a complaint document before
getting help after experiencing sexual harassment. Commenters asserted
that the formal complaint definition would leave minor students who may
be incapable of writing and signing a document unprotected unless the
Title IX Coordinator chooses to file a formal complaint on the
student's behalf. Commenters argued that it is inappropriate to require
a minor to sign any document because minors lack the legal capacity to
bind themselves by signature. Commenters wondered what schools must do
if a parent later disagrees with their child's decision to file a
formal complaint or if the minor's parent is not consulted prior to
filing. Other commenters wondered how a school must handle a situation
where the parent, but not the child, wishes to file a formal complaint.
Commenters wondered if the proposed rules would allow a Title IX
Coordinator to help a complainant fill out the contents of a formal
complaint.
Discussion: To address commenters' concerns that the proposed rules
did not contemplate the circumstances under which a parent might have
the right to file a formal complaint on their child's behalf, we have
added Sec. 106.6(g), which acknowledges 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, including
but not limited to the filing of a formal complaint. Thus, if a parent
has the legal right to act on behalf of their child, the parent may act
on the student's behalf by, for example, signing a formal complaint
alleging that their child was sexually harassed and asking the
recipient to investigate. The parent does not, in that circumstance,
become the complainant (because ``complainant'' is defined as an
individual who is alleged to be the victim of sexual harassment) \601\
but the final regulations clarify that a parent's (or guardian's) legal
right to act on behalf of the complainant (or respondent) is not
altered by these final regulations. The 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.
---------------------------------------------------------------------------
\601\ Section 106.30 (defining ``complainant'' to mean an
individual ``an individual who is alleged to be the victim of
conduct that could constitute sexual harassment'') (emphasis added).
---------------------------------------------------------------------------
Nothing in these final regulations precludes a Title IX Coordinator
from assisting a complainant (or parent) from filling out a document
intended to serve as a formal complaint; however, a Title IX
Coordinator must take care not to offer such assistance to pressure the
complainant (or parent) to file a formal complaint as opposed to simply
assisting the complainant (or parent) administratively to carry out the
complainant's (or parent's) desired intent to file a formal complaint.
No person may intimidate, threaten, or coerce any person for the
purpose of interfering with a person's rights under Title IX, which
includes the right not to participate in a grievance process.\602\
---------------------------------------------------------------------------
\602\ Section 106.71 (prohibiting retaliation and specifically
protecting any individual's right to participate or to choose not to
participate in a grievance process).
---------------------------------------------------------------------------
Changes: We have added Sec. 106.6(g) to the final regulations,
acknowledging the legal rights of parents or guardians to act on behalf
of a complainant, respondent, or other individual. We have added Sec.
106.71 prohibiting retaliation and specifically protecting any
individual's right to participate, or not participate, in a grievance
process.
Methods of Reporting and Methods of Filing a Formal Complaint
Comments: Some commenters believed that the proposed rules would
require students to report in person to a Title IX Coordinator (which,
commenters asserted, is challenging for many students including those
in schools that have satellite campuses and a single Title IX
Coordinator located on a different campus). Commenters argued that a
student who goes through the inconvenience of locating the Title IX
Coordinator to make an in-person report, and then later decides to
pursue a formal process, would need to once again go meet the Title IX
Coordinator in-person to file a formal complaint. These commenters
argued that the narrow, formal definition of ``formal complaint''
proposed in Sec. 106.30 would impose unnecessary barriers for
complainants and result in fewer formal complaints being filed.
Commenters argued that requiring complainants to file formal complaints
only with the Title IX Coordinator--who may be a school official with
whom the complainant has no relationship--will make survivors less
comfortable with the reporting process, when already only about ten
percent of campus sexual assaults are reported.\603\
---------------------------------------------------------------------------
\603\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute of Justice, Research Report:
The Sexual Victimization of College Women (2000).
---------------------------------------------------------------------------
Commenters argued that a formal complaint should be allowed to be
filed by telephone, email, or in-person, at the complainant's
discretion. Commenters wondered whether Title IX Coordinators
[[Page 30137]]
have the discretion to help a complainant fill out a formal complaint;
whether a Title IX Coordinator could write out a complainant's verbal
report and have the complainant sign the document; and whether the
complainant's signature could be an electronic signature. Commenters
argued that without clarifying that the complainant may sign
electronically, the proposed rules would make it impossible for
complainants who are not physically present on campus (for example, due
to studying abroad, or being enrolled in an online course) to file
formal complaints. Other commenters expressed concern that electronic
reporting systems would not be allowed under the proposed regulations.
Commenters stated that many recipients (both elementary and secondary
schools, and postsecondary institutions) use exclusively online,
electronic submission systems; commenters suggested that Sec. 106.30
should specify that a formal complaint may be ``submitted'' or
``filed'' (but not ``signed'') to clarify that electronic submission
systems can be used for the Title IX Coordinator to receive a formal
complaint.
Discussion: Neither the proposed rules, nor the final regulations,
required students to report in person to a Title IX Coordinator.
However, to address commenters' concerns in this regard and to clarify
that reporting to a Title IX Coordinator, and filing a formal complaint
with the Title IX Coordinator, should be as accessible as possible for
complainants, we have revised the Sec. 106.30 definition of ``formal
complaint'' to explain that a formal complaint may be filed with the
Title IX Coordinator in person, by mail, or by electronic mail by using
the contact information required to be listed for the Title IX
Coordinator under Sec. 106.8(a), and by any additional method
designated by the recipient. A formal complaint cannot be filed by
telephone, because a formal complaint consists of a written document
(or electronic submission, such as an email or use of an online portal
provided by the recipient for the purpose of accepting formal
complaints); however, ``any additional method designated by the
recipient'' may include an online submission system, and the final
regulations now expressly reference the option for recipients to offer
online portals for submission of formal complaints. The Department has
also revised Sec. 106.8(b) to specify that the contact information
required to be listed for the Title IX Coordinator under Sec. 106.8(a)
must be prominently displayed on the recipient's website (if the
recipient has a website) and in any of the recipient's handbooks or
catalogs. As discussed above, neither the proposed rules, nor the final
regulations, restrict the form in which notice (e.g., a report of
alleged sexual harassment) is given to the Title IX Coordinator, an
official with authority to institute corrective measures, or an
elementary or secondary school employee. Such notice may be given to
the Title IX Coordinator via the same contact information listed for
the Title IX Coordinator in Sec. 106.8(a) (including in person or by
mail at the Title IX Coordinator's office address, by telephone, or by
email), or by other means of communicating with the Title IX
Coordinator.\604\ The final regulations thus ensure that complainants
have multiple clear, accessible methods for reporting (e.g., in person,
telephone, mail, electronic mail) and multiple methods for filing
formal complaints (e.g., in person, mail, electronic mail, any online
portal provided by the recipient to allow electronic submissions of
formal complaints), to reduce the inconvenience of ``locating'' the
Title IX Coordinator in order to report or to file a formal
complaint.\605\
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\604\ Section 106.8(a) (expressly stating that any person may
report sexual harassment by using any of the listed contact
information for the Title IX Coordinator or by any other means that
results in the Title IX Coordinator receiving the person's verbal or
written report, and such a report may be made ``at any time
(including during non-business hours) by using the telephone number
or electronic mail address, or by mail to the office address, listed
for the Title IX Coordinator.'').
\605\ We also reiterate that any person may report sexual
harassment triggering the recipient's response obligations, although
only a complainant (or Title IX Coordinator) may initiate a
grievance process by filing or signing a formal complaint. We have
revised Sec. 106.8(a) to emphasize the fact that any person may
report sexual harassment, whether or not the person reporting is the
person alleged to be the victim of conduct that could constitute
sexual harassment, and we have also revised Sec. 106.30, defining
``actual knowledge,'' to state that ``notice'' constituting actual
knowledge includes, but is not limited to, a report to the Title IX
Coordinator as described in Sec. 106.8(a). We have further revised
Sec. 106.8 to require recipients to notify all students, employees,
parents and guardians of elementary and secondary school students,
and others of the Title IX Coordinator's contact information,
including prominently displaying that contact information on the
recipient's website. These provisions ensure that all persons (not
only complainants themselves) have a clear, accessible method of
reporting sexual harassment.
---------------------------------------------------------------------------
We understand commenters' concerns that a student may not have a
preexisting relationship with a Title IX Coordinator; however, we
reiterate that filing a formal complaint is not necessary in order to
report and receive supportive measures. The revisions to Sec. 106.30
defining ``formal complaint'' give complainants the options of filing a
formal complaint in person, by mail, by email, and ``any additional
method designated by the recipient'' so that the recipient has
discretion to designate other methods for a formal complaint to be
filed; further, a ``document filed by a complainant'' is stated to mean
a mean a document or electronic submission (such as by electronic mail
or through an online portal provided for this purpose by the recipient)
that contains the complainant's physical or digital signature or
otherwise indicates that the complainant is the person filing the
formal complaint. The final regulations therefore authorize a recipient
to utilize electronic submission systems, both for reporting and for
filing formal complaints. The final regulations do not preclude a Title
IX Coordinator from helping a complainant fill out a formal complaint,
so long as what the complainant files is a document or electronic
submission that contains the complainant's physical or digital
signature, or otherwise indicates that the complainant is the person
filing the formal complaint.
Changes: We have revised the Sec. 106.30 definition of ``formal
complaint'' to specify that a formal complaint may be filed with the
Title IX Coordinator in person, by mail, or by electronic mail, by
using the contact information required to be listed for the Title IX
Coordinator under Sec. 106.8(a), and by any additional method
designated by the recipient. We have further revised this provision to
state that ``document filed by a complainant'' means a document or
electronic submission (such as by electronic mail or through an online
portal provided for this purpose by the recipient) that contains the
complainant's digital or physical signature, or otherwise indicates
that the complainant is the person filing the formal complaint.
Miscellaneous Concerns About the Formal Complaint Definition
Comments: Commenters wondered whether a complainant can file a
formal complaint after having graduated. Commenters wondered whether a
formal complaint could be filed against an unknown or unidentified
respondent; commenters opined that the formal grievance procedures in
Sec. 106.45 seemed ``elaborate'' for circumstances where the
perpetrator was not identified and thus there would be no possibility
of punishment through a grievance proceeding. Commenters suggested that
complainants should be allowed to make a formal complaint about
systemic culture of harassment on a campus, not only against an
individual respondent.
[[Page 30138]]
Discussion: The Department appreciates commenters' questions
regarding whether a complainant may file a formal complaint after the
complainant has graduated. The definition of ``complainant'' is any
individual alleged to be the victim of conduct that could constitute
sexual harassment; there is no requirement that the complainant must be
a student, employee, or other designated relationship with the
recipient in order to be treated as a ``complainant'' entitled to a
prompt, non-deliberately indifferent response from the recipient. To
clarify the circumstances under which a complainant may file a formal
complaint (thereby requiring the recipient to investigate sexual
harassment allegations) we have revised the Sec. 106.30 definition of
``formal complaint'' to state that a complainant must be participating
in, or attempting to participate in, the recipient's education program
or activity at the time of filing a formal complaint. A complainant who
has graduated may still be ``attempting to participate'' in the
recipient's education program or activity; for example, where the
complainant has graduated from one program but intends to apply to a
different program, or where the graduated complainant intends to remain
involved with a recipient's alumni programs and activities. Similarly,
a complainant who is on a leave of absence may be ``participating or
attempting to participate'' in the recipient's education program or
activity; for example, such a complainant may still be enrolled as a
student even while on leave of absence, or may intend to re-apply after
a leave of absence and thus is still ``attempting to participate'' even
while on a leave of absence. By way of further example, a complainant
who has left school because of sexual harassment, but expresses a
desire to re-enroll if the recipient appropriately responds to the
sexual harassment, is ``attempting to participate'' in the recipient's
education program or activity. Because a complainant is entitled under
these final regulations to a prompt response that must include offering
supportive measures, the Department's intention is that recipients will
promptly implement individualized services designed to restore or
preserve the complainant's equal access to education,\606\ regardless
of whether a complainant files a formal complaint, so that if a
complainant later decides to file a formal complaint, the complainant
has already been receiving supportive measures that help a complainant
maintain educational access.
---------------------------------------------------------------------------
\606\ Section 106.44(a); Sec. 106.30 (defining ``supportive
measures'').
---------------------------------------------------------------------------
The Sec. 106.30 definition of ``formal complaint'' states that a
formal complaint is a document that alleges sexual harassment ``against
a respondent,'' but the final regulations do not require a complainant
to identify the respondent in a formal complaint. However, Sec.
106.44(a) prohibits a recipient from imposing disciplinary sanctions on
a respondent without first following a grievance process that complies
with Sec. 106.45.\607\ Section 106.45(b)(2) requires the recipient to
send the parties written notice of allegations including the identities
of the parties, if known, ``upon receipt of a formal complaint.'' Thus,
a recipient in receipt of a complainant's formal complaint, where the
complainant has refused to identify the respondent, will be unable to
comply with the Sec. 106.45 grievance process and will not be
permitted to impose disciplinary sanctions against a respondent. In
such a circumstance, the recipient still must promptly respond by
offering supportive measures to the complainant, pursuant to Sec. Sec.
106.44(a) and 106.44(b)(1).
---------------------------------------------------------------------------
\607\ See also Sec. 106.45(b)(1)(i).
---------------------------------------------------------------------------
Nothing in the final regulations precludes a recipient from
responding to a complainant's request to investigate sexual harassment
that allegedly has created a hostile environment on campus; however, a
recipient cannot impose disciplinary sanctions against a respondent
accused of sexual harassment unless the recipient first follows a
grievance process that complies with Sec. 106.45. A complaint filed by
a complainant would not constitute a formal complaint triggering a
recipient's obligation to investigate unless it is a document alleging
sexual harassment against a respondent, and the recipient would not be
able to impose disciplinary sanctions against a respondent unless the
respondent's identity is known so that the recipient follows a
grievance process that complies with Sec. 106.45. A recipient must
investigate a complainant's formal complaint even if the complainant
does not know the respondent's identity, because an investigation might
reveal the respondent's identity, at which time the recipient would be
obligated to send both parties written notice of the allegations under
Sec. 106.45(b)(2) and fulfill all other requirements of the Sec.
106.45 grievance process.
Changes: We have revised Sec. 106.30 defining ``formal complaint''
to provide that at the time of filing a formal complaint, a complainant
must be participating in or attempting to participate in the education
program or activity of the recipient with which the formal complaint is
filed.
Postsecondary Institution
Comments: Some commenters assumed that the Department's use of the
term ``institution of higher education'' in the NPRM means an
institution as defined in the Department's regulations implementing
Title IV of the Higher Education Act of 1965, as amended, (``HEA'') and
thus concluded that the Department must undergo negotiated rulemaking
in order to promulgate these final regulations.
Discussion: The Department's use of the term ``institution of
higher education'' in the NPRM did not refer to ``institution of higher
education'' as defined in the Department's regulations implementing
Title IV of the HEA. As explained in more detail elsewhere in this
preamble including the ``Executive Orders and Other Requirements''
subsection of the ``Miscellaneous'' section of this preamble, the
Department is promulgating these regulations under Title IX and not
under the HEA. Accordingly, the Department is not subject to the
requirement of negotiated rulemaking under Title IV of the HEA.
To make it exceedingly clear that these final regulations do not
refer to ``institutions of higher education'' in the context of the
HEA, the Department revised the final regulations to refer to
``postsecondary institutions'' instead of ``institutions of higher
education.'' The Department derives its definition of ``postsecondary
institution'' from the existing definitions in Part 106 of Title 34 of
the Code of Federal Regulations. The definition of ``educational
institution'' in Sec. 106.2(k) is a definition that applies to Part
106 of Title 34 of the Code of Federal Regulations. Section 106.2(k)
defines an educational institution in relevant part as an applicant or
recipient of the type defined by paragraph (l), (m), (n), or (o) of
Sec. 106.2. Paragraphs (l), (m), (n), and (o) of Sec. 106.2 define an
institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional
education, and an institution of vocational education, respectively.
Accordingly, the Department defines a postsecondary institution as an
institution of higher education as defined in Sec. 106.2(l), an
institution of undergraduate higher education as defined in Sec.
106.2(m), an institution of professional education as defined in Sec.
106.2(n), and an institution of vocational education as defined in
[[Page 30139]]
Sec. 106.2(o). In this manner, the Department defines the subset of
educational institutions as defined in Sec. 106.2(k) that constitute
postsecondary institutions as defined in Sec. 106.30. The remainder of
the entities described as educational institutions in Sec. 106.2(k)
constitute elementary and secondary schools as explained in the section
above on the definition of ``elementary and secondary school.'' The
definition of ``postsecondary institution'' applies only to Sec. Sec.
106.44 and 106.45 of these final regulations.
Changes: The Department revises Sec. 106.30 to define a
``postsecondary institution'' as used in Sec. Sec. 106.44 and 106.45
to mean an institution of higher education as defined in Sec.
106.2(l), an institution of undergraduate higher education as defined
in Sec. 106.2(m), an institution of professional education as defined
in Sec. 106.2(n), and an institution of vocational education as
defined in Sec. 106.2(o), and replaces ``institutions of higher
education'' with ``postsecondary institutions'' throughout the final
regulations.
Respondent
Comments: At least one commenter appreciated that the Department
clarified in its proposed definition that only a person in their
individual capacity could be subjected to a Title IX investigation
rather than an entire organization. Several commenters suggested that
the Department alter the language from ``respondent'' to ``responding
party.'' Other commenters recommended adding the word ``accused''
instead of the word ``reported'' in an effort to eliminate bias from
the proceedings. One commenter asserted that the word ``reported''
implies that only a mere accusation exists and the commenter argued
that a mere accusation should not make a person a respondent. One
commenter requested that the Department clarify that a respondent need
not be a student, but may be a faculty or staff member. Another
commenter asked for clarification regarding what constitutes a person
``reported to be a perpetrator'' since schools' obligations to the
parties are only triggered when someone actually becomes a respondent
or complainant.
Discussion: We acknowledge commenters' concerns with the language
in the Sec. 106.30 definition of ``respondent.'' However, the
Department declines to alter the term ``respondent'' to ``responding
party'' because the two terms do not vary in a significant way and the
term ``respondent'' is just as neutral as the proposed modification,
without introducing potential confusion from use of ``responding
party'' when throughout the final regulations the word ``party'' is
used to refer to either a complainant or a respondent. The Department
also disagrees with the specific concern that using the language
``reported'' as opposed to ``accused'' to define the respondent, has
the potential to bias the proceedings. The Department believes that the
term ``reported'' carries a less negative connotation than the term
``accused'' without disadvantaging the complainant. We also acknowledge
the suggestion that the final regulations clarify that a respondent can
be a student, a faculty member, or other employee of the recipient, and
the suggestion that the Department clarify whether a formal complaint
is required for a party to become a ``respondent.'' The Department
believes that Sec. 106.30 contains sufficiently clear, broad language
indicating that any ``individual'' can be a respondent, whether such
individual is a student, faculty member, another employee of the
recipient, or other person with or without any affiliation with the
recipient. The Department intentionally does not limit a ``respondent''
to include only individuals against whom a formal complaint has been
filed, because even where a grievance process is not initiated, the
recipient still has general response obligations under Sec. 106.44(a)
that may affect the person alleged to have committed sexual harassment
(i.e., the respondent). While the terms ``complainant'' and
``respondent'' are commonly used when a formal proceeding is pending,
in an effort to eliminate confusion and to promote consistency
throughout the final regulations, the Department uses the terms
``complainant'' and ``respondent'' to identify the parties in
situations where a formal complaint has not been filed as well as where
a grievance process is pending.
Changes: None.
Sexual Harassment
Overall Support and Opposition for the Sec. 106.30 Sexual Harassment
Definition
Comments: Many commenters expressed support for the Sec. 106.30
definition of sexual harassment. One commenter commended the
Department's Sec. 106.30 definition because it makes clear that Title
IX governs misconduct by colleges, not students, and addresses the real
problem of sexual harassment while acknowledging that not all forms of
unwanted sexual behavior--inappropriate and problematic as they may
be--rise to the level of a Title IX violation on the part of colleges
and universities. One commenter expressed strong support for shifting
Title IX regulations to provide a clear, rational, understandable
definition of what, precisely, constitutes sexual harassment and
assault as opposed to current vague guidelines. One commenter stated
that although some misinformed commenters and advocates have claimed
the proposed rules would not require a school to respond to allegations
of rape, the third prong of the Sec. 106.30 definition clearly
prohibits criminal sexual conduct itemized in incorporated regulation
34 CFR 668.46(a) including a single instance of rape. This commenter
further expressed support for the second prong of the definition, which
is limited to unwelcome conduct that is ``severe, pervasive, and
objectively offensive,'' which, the commenter stated, has proven to be
the most controversial prong yet has three advantages: (1) It provides
greater clarity and consistency for colleges and universities; (2) it
minimizes the risk that federal definitions of sexual harassment will
violate academic freedom and the free speech rights of members of the
campus community; and (3) it recognizes that the Department's job is
not to write new law. This commenter argued that if stakeholders desire
a more expansive definition of sexual harassment, they should direct
their concerns to Congress, and stated that the proposed rules clearly
leave schools with the discretion to use their own, broader definitions
of misconduct that do not fall within the school's Title IX
obligations.
Several commenters supported the Sec. 106.30 definition because
they asserted that it would protect free speech and academic freedom
while still requiring recipients to respond to sexual harassment that
constitutes sex discrimination. One commenter argued that Title IX
grants the Department authority to impose procedural requirements on
schools to effectuate the purpose of Title IX but not to redefine what
discrimination is, and when it comes to peer harassment particularly,
application of broad definitions modeled on Title VII (which, the
commenter asserted, does not require denial of equal access or
severity), rather than Title IX's narrower definition, has led to
numerous infringements on student and faculty speech and expression.
This commenter stated that based on the Department's experience
observing how a broader definition has been applied, the Department
reasonably may wish to adopt a narrower, clearer definition of
[[Page 30140]]
harassment to avoid free speech problems, citing a Supreme Court case
for the proposition that courts will not allow agencies to adopt
regulations broadly interpreting a statute in a manner that raises
potential constitutional problems.\608\ This commenter argued that the
Department cannot ban all unwelcome verbal conduct (i.e., speech), or
even seriously offensive speech, and that correcting an overly broad
definition of harassment is an appropriate exercise of an agency's
authority. The commenter argued that a broad definition may result in
an agency finding liability that a court later reverses or subjecting a
recipient to a lengthy, speech-chilling investigation that courts later
view as a free speech violation; \609\ thus, an agency needs to define
harassment narrowly to avoid free speech problems ex ante rather than
try to rely on ad-hoc First Amendment exceptions to a broad definition.
---------------------------------------------------------------------------
\608\ Commenters cited: Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. and Const. Trades Council, 485 U.S. 568, 574-575 (1988)
(rejecting agency's broad interpretation of law because it would
raise possible free speech problems); NAACP v. Button, 371 U.S. 415,
438 (1963) (stating broad prophylactic rules in the area of free
expression are forbidden because the First Amendment demands
precision of regulation).
\609\ Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist.,
605 F.3d 703 (9th Cir 2010); White v. Lee, 227 F.3d 1214 (9th Cir.
2000); Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin,
J., concurring); Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351
(Or. 1995).
---------------------------------------------------------------------------
Several commenters supported the Sec. 106.30 definition, arguing
that the proposed rules correctly defined the harassment a college must
respond to as severe, pervasive conduct that denies equal access to an
education--not conduct or speech that is merely ``unwelcome,'' as other
commenters would like. One commenter argued that students and faculty
must be able to discuss sexual issues, even if that offends some people
who hear it, and the fact that speech is deeply offensive to a listener
is not a sufficient reason to suppress it.\610\ One commenter asserted
that, contrary to the suggestion of other commenters who have argued
that individual instances of unwelcome speech should be suppressed to
prevent any possibility of a hostile environment later developing, such
a prophylactic rule to prevent harassment would be a sweeping rule,
grossly overbroad in violation of the First Amendment.\611\ The
commenter further argued that this First Amendment rule fully applies
to colleges because the Supreme Court rejected the idea that ``First
Amendment protections should apply with less force on college campuses
than in the community at large. Quite to the contrary, `the vigilant
protection of constitutional freedoms is nowhere more vital than in the
community of American schools.' '' \612\ Thus, the commenter asserted,
even vulgar or indecent college speech is protected.\613\ This
commenter argued that because the First Amendment does not permit broad
prophylactic rules against harassing speech, for a college to punish
speech that is not severe and pervasive is a violation of the First
Amendment.\614\ The commenter further argued that even if speech is
severe or pervasive, and thus could otherwise violate Federal
employment laws like Title VII, faculty speech that offends co-workers
may be protected under academic freedom when it does not target a
specific employee based on race or gender \615\ and the Supreme Court
intentionally has adopted a narrower definition of harassment under
Title IX than under Title VII, requiring that conduct be both severe
and pervasive enough to deny equal educational access, as opposed to
merely fostering a hostile environment through severe or pervasive
conduct.\616\ By contrast to the second prong of the Sec. 106.30
definition, the commenter argued that the Department does have
authority to require schools to process claims of groping-based
assaults, even if the groping did not by itself deny educational
access, as a prophylactic rule to prevent such conduct from recurring
and spreading, and potentially causing more harm to the victim that
culminates in denial of educational access; according to this
commenter, the difference is that because ignoring even a misdemeanor
sexual assault creates a high risk that such conduct will persist or
spread to the point of denying access and prophylactic rules are
constitutionally acceptable when applied to conduct (such as sexual
assault), not speech.
---------------------------------------------------------------------------
\610\ Commenters cited: Snyder v. Phelps, 562 U.S. 443 (2011).
\611\ Commenters cited: NAACP v. Button, 371 U.S. 415, 438
(1963).
\612\ Commenters cited: Healy v. James, 408 U.S. 169, 180
(1972).
\613\ Commenters cited: Papish v. Bd. of Curators, 410 U.S. 667
(1973).
\614\ Commenters cited: DeJohn v. Temple Univ., 537 F.3d 301 (3d
Cir. 2008).
\615\ Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist.,
605 F.3d 703 (9th Cir. 2010).
\616\ Commenters cited: Davis v. Monroe Dep't. of Educ., 526
U.S. 629, 633, 650, 651, 652, 654 (1999) (noting that the Court
repeated the severe ``and'' pervasive formulation five times).
---------------------------------------------------------------------------
One commenter asserted that we live in a hypersensitive age in
which disagreeable views are considered an assault on students'
emotional safety or health, even though such disagreement is protected
by the First Amendment.\617\ This commenter agreed with the proposed
rules' requirement that speech must interfere with educational
``access'' and not merely create a hostile environment because from a
First Amendment perspective, under schools' hostile learning
environment harassment codes, students and campus newspapers have been
charged with racial or sexual harassment for expressing commonplace
views about racial or sexual subjects, such as criticizing feminism,
affirmative action, sexual harassment regulations, homosexuality, gay
marriage, or transgender rights, or discussing the alleged racism of
the criminal justice system.\618\ The commenter argued that to prevent
speech on campus about racial or sexual subjects from being
unnecessarily chilled or suppressed, a more limited definition of
sexual harassment is necessary than the expansive hostile environment
concept.\619\ Another commenter stated that courts have struck down
campus racial and gender harassment codes that banned speech that
created a hostile environment, but did not cause more tangible harm to
students.\620\ This commenter argued that if a regulation or campus
code bans hostile environments created from verbal conduct, without
requiring more tangible harm, people can and will file complaints, and
bring lawsuits, over constitutionally protected speech that offended
them and that including a vague First Amendment exception in such codes
or regulations is not enough to protect free speech because when
liability or punishment is imposed, the decision-maker doing so will
just claim that the penalty is not based on the content of the speech
and that any First Amendment exception does not apply. The commenter
argued that to protect free speech, the very definition of harassment
must include a
[[Page 30141]]
requirement that verbal conduct deny access to an education.
---------------------------------------------------------------------------
\617\ Commenters cited: Jonathan Haidt & Greg Lukianoff, The
Coddling of the American Mind (Penguin Press 2018).
\618\ Commenters cited: Jerome Woehrle, Free Speech Shrinks Due
to Bans on Hostile or Offensive Speech, Liberty Unyielding (Nov. 23,
2017), https://libertyunyielding.com/2017/11/23/free-speech-shrinks-due-bans-hostile-offensive-speech/ (citing various sources including
books and articles).
\619\ Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist.,
605 F.3d 703 (9th Cir. 2010) (dismissing racial harassment lawsuit
over instructor's racially insensitive emails about immigration
based on the First Amendment, even though the emails were offensive
to Hispanic employees).
\620\ Commenters cited: Dambrot v. Cent. Mich. Univ., 55 F.3d
1177 (6th Cir. 1995); UWM Post v. Bd. of Regents of Univ. of Wis.
Sys., 774 F. Supp. 1163 (E.D. Wis. 1991).
---------------------------------------------------------------------------
The commenter argued that the Sec. 106.30 definition of harassment
properly requires that verbal conduct be severe, not just pervasive or
persistent as prior Department guidance suggested. The commenter
asserted that just because offensive ideas are pervasive or persistent
on a college campus does not strip the ideas of First Amendment
protection and thus, only severe verbal conduct, such as fighting
words, threats, and intentional infliction of severe emotional
distress, should be prohibited. One commenter similarly argued that the
same result is appropriate in the elementary and secondary school
context, arguing that the Supreme Court's Davis decision expressly
required that conduct be severe and pervasive for Title IX liability,
unlike workplace conduct under Title VII, and that the Court did so
precisely because of the inevitability that elementary and secondary
school students frequently behave in ways that would be unacceptable
among adult workers.\621\ The commenter surmised that the Davis Court
also likely did so to address free speech concerns raised by amici, who
discussed serious problems with using the broader workplace severe or
pervasive standard for college students' speech. According to this
commenter, college students have broader free speech rights than
employees do, and the harassment definition as to their verbal conduct
thus needs to be narrower under Title IX than under Title VII.
Similarly, another commenter asserted that colleges are not like
workplaces where it may be natural to ban offensive speech to maximize
efficiency or prevent a hostile or offensive environment; rather,
colleges exist for the purpose of exchanging ideas and pursuing the
truth even if words and ideas offend listeners.\622\ Thus, the
commenter asserted, schools should not be required to punish speakers
unless their speech interferes with access to an education; according
to this commenter, discussion of unpleasant sexual realities and
unpopular viewpoints should not be silenced.
---------------------------------------------------------------------------
\621\ Commenters cited: Davis, 526 U.S. 629, 652 (1999).
\622\ Commenters cited: Dambrot v. Cent. Mich. Univ., 55 F.3d
1177 (6th Cir. 1995) (holding hostile environment harassment code
was unconstitutionally vague and overbroad and was not a valid
prohibition of fighting words).
---------------------------------------------------------------------------
One commenter asserted that the Davis standard, incorporated into
the second prong of the Sec. 106.30 definition, allows schools to
prohibit sexual violence, to discipline those who commit it, and to
remedy its effects and also allows schools to punish students when they
determine that a student has engaged in expression (without
accompanying physical or other conduct) that is discriminatory based on
sex and that interferes with a student's access to education because of
its severity, pervasiveness, and objective offensiveness.\623\ This
commenter stated it is precisely because expression, and not just
physical conduct, may be restricted or punished as harassment that the
Supreme Court carefully crafted the Davis standard for Title IX,
reiterating it multiple times in its majority opinion and
distinguishing it from the employment standard applied under Title VII.
---------------------------------------------------------------------------
\623\ Commenters further argued that there is no doubt that
First Amendment interests are implicated when expression on public
college campuses is regulated; as the Supreme Court has established,
``If there is a bedrock principle underlying the First Amendment, it
is that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable.'' Texas v. Johnson, 491 U.S. 397, 414 (1989). The
Supreme Court has also rejected the idea that ``because of the
acknowledged need for order, First Amendment protections should
apply with less force on college campuses than in the community at
large. Quite to the contrary, `the vigilant protection of
constitutional freedoms is nowhere more vital than in the community
of American schools.' '' Healy v. James, 408 U.S. 169, 180 (1972)
(internal citations omitted). Further, these protections apply even
to highly offensive speech on campus: ``[T]he mere dissemination of
ideas--no matter how offensive to good taste--on a state university
campus may not be shut off in the name alone of `conventions of
decency.' '' Papish v. Bd. of Curators, 410 U.S. 667, 670 (1973)
(internal citations omitted).
---------------------------------------------------------------------------
One commenter asserted that, to the extent the proposed regulations
appear to be a departure from a legally sound approach, as some critics
have alleged, that is only because the Departments of Education and
Justice have, in recent years, insisted upon an unconstitutionally
broad definition of sexual harassment unsupported by statutes,
regulations, or case law while the new proposed definition is in fact a
welcome return to consistency with the law itself. This commenter
further noted that while Davis sets forth constitutional guidelines for
what may and may not be punished under Title IX, it does not preclude
recipients from addressing conduct that does not meet that standard, in
non-punitive ways including for example providing the complainant with
supportive measures, responding to the conduct in question with
institutional speech, or offering programming designed to foster a
welcoming campus climate more generally.
One commenter supported the Sec. 106.30 definition based on belief
that the Federal government should not make a solution to problems of
interpersonal relations (and sometimes intimate relations) a
precondition to the receipt of Federal funds because schools do not
hold a ``magic bullet'' to prevent all student relationships from going
bad, and university resources should not be diverted to respond to
civil rights investigations or litigation based on just a student's
post-hoc, subjective feelings of being harassed or disrespected.
Another commenter believed the new definition would stop schools from
acting as the ``sex police.'' This commenter argued that schools have
interpreted the current, extremely broad, definition to include asking
too many times for sex; nine second stares; fist bumps; and wake up
kisses, effectively requiring schools to police the sex lives of
students. One commenter supported the Sec. 106.30 definition asserting
that harassment definitions should not assume weaknesses or
vulnerabilities that the genders have spent decades trying to erase.
Other commenters supported the definition believing it would benefit
those truly sexually harassed or assaulted and put a stop to false
accusations after regretful hookups. One commenter asserted that a
clear definition of sexual harassment actionable under Title IX is
crucial to ensure that no woman feels ignored or mistreated by a
particular investigator or administrator and thus making the definition
consistent with Supreme Court precedent is an important advancement for
women.
Discussion: The Department appreciates commenters' support for the
Sec. 106.30 definition of sexual harassment. The Department agrees
that the final regulations utilize a sexual harassment definition
appropriate for furthering Title IX's non-discrimination mandate while
acknowledging the unique importance of First Amendment freedoms in the
educational context. As described in the ``Adoption and Adaption of the
Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, the NPRM proposed a three-pronged definition of sexual
harassment recognizing quid pro quo harassment by any recipient
employee (first prong), unwelcome conduct on the basis of sex that is
so severe, pervasive, and objectively offensive that it effectively
denies a person equal access to education (second prong), and sexual
assault (third prong).
Overall, as revised in these final regulations, this three-part
definition in Sec. 106.30 adopts the Supreme Court's formulation of
actionable sexual harassment, yet adapts the formulation
[[Page 30142]]
for administrative enforcement in furtherance of Title IX's broad non-
discrimination mandate by adding other categories (quid pro quo; sexual
assault and three other Clery Act/VAWA offenses \624\) that, unlike the
Davis formulation, do not require elements of severity, pervasiveness,
or objective offensiveness. The Department assumes that a victim of
quid pro quo sexual harassment or the sex offenses included in the
Clery Act, as amended by VAWA, has been effectively denied equal access
to education. The Sec. 106.30 definition captures categories of
misconduct likely to impede educational access while avoiding a chill
on free speech and academic freedom. The Department agrees with
commenters noting that the Department has a responsibility to enforce
Title IX while not interfering with principles of free speech and
academic freedom, which apply in elementary and secondary schools as
well as postsecondary institutions in a manner that differs from the
workplace context where Title VII prohibits sex discrimination.
---------------------------------------------------------------------------
\624\ These final regulations expressly include four Clery Act/
VAWA offenses as sexual harassment as defined in Sec. 106.30:
Sexual assault, dating violence, domestic violence, and stalking.
---------------------------------------------------------------------------
The Department agrees that the Supreme Court carefully and
deliberately crafted the Davis standard for when a recipient must
respond to sexual harassment in recognition that school environments
are unlike workplace environments. Precisely because expressive speech,
and not just physical conduct, may be restricted or punished as
harassment, it is important to define actionable sexual harassment
under Title IX in a manner consistent with respect for First Amendment
rights, and principles of free speech and academic freedom, in
education programs and activities. Likewise, the Department agrees with
the commenter who noted the distinction between a standard for when
speech is actionable versus a standard for when physical conduct is
actionable; the former requires a narrowly tailored formulation that
refrains from effectively applying, or encouraging recipients to apply,
prior restraints on speech and expression, while the latter raises no
constitutional concerns with respect to application of broader
prohibitions. Thus, quid pro quo harassment \625\ and the four Clery
Act/VAWA offenses constitute per se actionable sexual harassment, while
the ``catch-all'' Davis formulation that covers purely verbal
harassment also requires a level of severity, pervasiveness, and
objective offensiveness. The ``catch-all'' Davis formulation is a
narrowly tailored standard to ensure that speech and expression are
prohibited only when their seriousness and impact avoid First Amendment
concerns.
---------------------------------------------------------------------------
\625\ While quid pro quo harassment by a recipient's employee
involves speech, the speech is, by definition, designed to compel
conduct; thus, the Department believes that a broad prohibition
against an employee conditioning an educational benefit on
participation in unwelcome sexual conduct does not present
constitutional concerns with respect to protection of speech and
expression. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d
200, 207 (3d Cir. 2001) (``government may constitutionally prohibit
speech whose non-expressive qualities promote discrimination. For
example, a supervisor's statement `sleep with me or you're fired'
may be proscribed not on the ground of any expressive idea that the
statement communicates, but rather because it facilitates the threat
of discriminatory conduct. 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.' '') (emphasis in
original).
---------------------------------------------------------------------------
The Department does not intend, through these final regulations, to
encourage or discourage recipients from governing the sex and dating
lives of students, or to opine on whether or not recipients have become
the ``sex police;'' whether such a trend is positive or negative is
outside the purview of these final regulations. The Department's
definition of sexual harassment is designed to hold recipients
accountable for meaningful, fair responses to sexual harassment that
violates a person's civil right to be free from sex discrimination, not
to dictate a recipient's role in the sex or dating lives of its
students. The Department emphasizes that any person can be a victim,
and any person can be a perpetrator, of sexual harassment, and like the
Title IX statute itself, these final regulations are drafted to be
neutral toward the sex of each party.\626\
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\626\ Compare 20 U.S.C. 1681(a) (``No person in the United
States shall, on the basis of sex, be excluded . . .'') (emphasis
added) with Sec. 106.30 (defining ``complainant'' to mean ``an
individual who is alleged to be the victim . . .'') (emphasis
added).
---------------------------------------------------------------------------
Changes: We have revised the Sec. 106.30 definition of sexual
harassment in four ways: First, by moving the clause ``on the basis of
sex'' from the second prong to the introductory sentence of the entire
definition to align with Title IX's focus on discrimination ``on the
basis of sex'' for all conduct that constitutes sexual harassment;
second, by specifying that the Davis elements in the second prong
(severe, pervasive, objectively offensive, denial of equal access) are
determined under a reasonable person standard; third, by adding the
other three Clery Act/VAWA sex offenses (dating violence, domestic
violence, and stalking) to the sexual assault reference in the third
prong; and fourth, by referencing the Clery Act and VAWA statutes
rather than the Clery Act regulations.
Comments: Many commenters opposed the Sec. 106.30 definition of
sexual harassment, with some commenters arguing that the definition is
unfair, would make schools unsafe and vulnerable and retraumatize
survivors, is misogynistic, and promotes a hostile environment.
Commenters also stated that it would negatively impact all students,
especially LGBTQ students including transgender and non-binary people
who are already more reluctant to report for fear of facing bias. Many
commenters directed the Department to information and data about
prevalence, impact, and other dynamics of sexual harassment that is
addressed in the ``General Support and Opposition'' section of this
preamble, arguing that the ``narrowed'' or ``stringent'' definition of
sexual harassment in the NPRM would increase the prevalence, impact,
and costs of sexual harassment on all victims and decrease or chill
reporting of sexual harassment including disproportionately negative
consequences for particular demographic populations. Many commenters
asserted that the proposed definition fails to encompass the wide range
of types of sexual harassment that students frequently face. Many
commenters argued that requiring schools to only investigate the most
serious cases gives a green light to all kinds of inappropriate
behavior that should also be investigated. A few commenters contended
that screening out harassment claims that do not meet certain
thresholds contributes to a society-wide problem where from a young age
girls are told in subtle and less subtle ways to be good, nice, and
quiet, that girls don't matter as much as boys, and that speaking up to
say something against a boy will not be taken seriously.
One commenter asserted that Alexander v. Yale established that
sexual harassment and assault in schools is not only a crime, but also
impedes equitable access to education.\627\ Several commenters asserted
that any act of rape or assault denies the victim the ability to
successfully participate in college and that a person who is raped or
assaulted is traumatized, which affects all aspects of college
participation and academic performance. Many commenters contended that
if enacted, the proposed rules would raise a question for a victim: Was
my rape/assault bad enough
[[Page 30143]]
or severe enough to warrant someone listening to me?
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\627\ Commenters cited: Alexander v. Yale Univ., 459 F. Supp. 1
(D. Conn. 1977).
---------------------------------------------------------------------------
Several commenters asserted that by narrowing the definition of
sexual harassment, the proposed rules would invalidate the adverse
experiences to which victims have been subjected. One commenter argued
that while there is no silver bullet to fixing the problem of sexual
assault and harassment, narrowing what actions are deemed assault in
the realm of Title IX will muddy the waters even further; the commenter
argued that what people perceive as vague is necessary to ensure
victims are being treated fairly. Several commenters asserted that as
all victims of harassment are unique, so are forms of harassment unique
and should remain widely defined.
Several commenters argued that the definitions of sexual harassment
need to be developed further to include cultural differences in sexual
harassment and discrimination. Other commenters asserted that the Sec.
106.30 definition of sexual harassment is very limiting compared to
what students on campus really feel and experience; further, students
may understand an experience differently based on race, sex, and
cultural factors leading to misunderstanding as to what sexual assault
or sexual harassment is or is not. A few commenters argued that sexual
violence or sexual violation would be a better term to use than sexual
harassment. At least one commenter asserted that accused students
sometimes do not recognize their behavior as violent and wondered how
that reality plays into Title IX reform. At least one commenter
characterized the use of qualifiers like severe and pervasive in the
sexual harassment definition as creating a fact-bound focus on the
behavior of the victim, an unfair result given that much of the conduct
complained about may also be criminal.
Discussion: The Department disagrees that the three-pronged
definition of sexual harassment in Sec. 106.30 is unfair,
misogynistic, will make schools unsafe, leave students vulnerable,
retraumatize survivors, promote a hostile environment, or disadvantage
LGBTQ students. As described above, the definition is rooted in Supreme
Court Title IX precedent and principles of free speech and academic
freedom, applies equally to all persons regardless of sexual
orientation or gender identity, provides clear expectations for when
schools legally must respond to sexual harassment, and leaves schools
discretion to address misconduct that does not meet the Title IX
definition. The Department appreciates the data and information
commenters referred to regarding the prevalence and impact of sexual
harassment on students (and employees) of all ages and characteristics.
Precisely because sexual harassment affects so many students in such
detrimental ways, the Department has chosen, for the first time, to
exercise its authority under Title IX to codify regulations that
mandate school responses to assist survivors in the aftermath of sexual
harassment.
The Department does not disagree with commenters' characterizations
of the Davis standard as ``narrow'' or even ``stringent,'' but we
contend that as a whole, the range of conduct prohibited under Title IX
is adequate to ensure that abuse of authority (i.e., quid pro quo),
physical violence, and sexual touching without consent (i.e., the four
Clery Act/VAWA offenses) trigger a school's obligation to respond
without scrutiny into the severity or impact of the conduct, while
verbal and expressive conduct crosses into Title IX sex discrimination
(in the form of sexual harassment) when such conduct is so serious that
it effectively denies a person equal access to education. As a whole,
the definition of sexual harassment in Sec. 106.30 is significantly
broader than the Davis standard alone,\628\ and in certain ways broader
than the judicial standards applied to workplace sexual harassment
under Title VII.\629\ The final regulations provide students,
employees, and recipients clear direction that when incidents of quid
pro quo harassment or Clery Act/VAWA offenses are reported to the
recipient, the recipient must respond without inquiring into the
severity or pervasiveness of such conduct. The Department understands
commenters' concerns that the Davis standard's elements (severity,
pervasiveness, and objective offensiveness) will exclude from Title IX
incidents of verbal harassment that do not meet those elements.
However, the Department does not agree that this standard for verbal
harassment (and physical conduct that does not constitute a Clery Act/
VAWA offense included in these final regulations) will discourage
students or employees from reporting harassment, fail to require
recipient responses to a wide range of sexual harassment frequently
faced by students, or send the message that girls do not matter as much
as boys. The Department believes that State and local educators desire
a safe, learning-conducive environment for students and employees, and
that recipients will evaluate incidents under the Davis standard from
the perspective of a reasonable person in the shoes of the complainant,
such that the ages, abilities, and relative positions of authority of
the individuals involved in an incident will be taken into account. To
reinforce this, the final regulations revise the second prong of the
sexual harassment definition to specify that the Davis elements are
``determined by a reasonable person'' to be so severe, pervasive, and
objectively offensive that a person is effectively denied equal access
to education. The Department does not dispute commenters'
characterization that only serious situations will be actionable under
this definition, but following the Supreme Court's reasoning in Davis,
that stricture is appropriate in educational environments where younger
students are still learning social skills and older students benefit
from robust exchange of ideas, opinions, and beliefs.
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\628\ This is because the Davis standard, alone, evaluates even
physical assaults and violence through the lens of whether an
incident is severe, pervasive, and objectively offensive so as to
deny a person equal access; however, under these final regulations
these elements do not apply to sex-based incidents of quid pro quo
harassment, sexual assault, dating violence, domestic violence, or
stalking.
\629\ Under Title VII, sexual harassment (including quid pro
quo, hostile environment, and even sexual assault) must be shown to
alter the conditions of employment. See Meritor Sav. Bank v. Vinson,
477 U.S. 57, 67 (1986). Under these final regulations, quid pro quo
harassment, sexual assault, dating violence, domestic violence, and
stalking do not require a showing of alteration of the educational
environment. As previously stated, the Department assumes that a
victim of quid pro quo sexual harassment or the criminal sex
offenses included in the Clery Act, as amended by VAWA, has been
effectively denied equal access to education.
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Contrary to commenters' assertions, neither the Davis standard nor
the sexual harassment definition holistically gives a green light to
inappropriate behavior. Rather, the three-pronged definition of sexual
harassment in Sec. 106.30 provides clear requirements for recipients
to respond to sexual harassment that constitutes sex discrimination
prohibited under Title IX, while leaving recipients flexibility to
address other forms of misconduct to the degree, and in the manner,
best suited to each recipient's unique educational environment.
The Department agrees with commenters that for decades, sexual
harassment has been a recognized form of sex discrimination that
impedes equal access to education, and that rape and assault traumatize
victims in ways that negatively affect participation in educational
programs and activities. For this reason, contrary to the
misunderstanding of many commenters, the Department intentionally
included sexual assault as a per se type of sexual harassment rather
than leaving sexual assault to be evaluated for severity or
[[Page 30144]]
pervasiveness under the Davis standard. No student or employee
traumatized by sexual assault needs to wonder whether a rape or sexual
assault was ``bad enough'' or severe enough to report and expect a
meaningful response from the survivor's school, college, or university.
Far from narrowing what constitutes sexual assault, the Department
incorporates the offense of sexual assault used in the Clery Act, which
broadly defines sexual assault to include all the sex offenses listed
by the FBI's Uniform Crime Reporting system. The Department agrees that
all victims of harassment are unique, and that harassment can take a
myriad of unique forms. For this reason, the Department defines sexual
harassment to include the four Clery Act/VAWA offenses, leaves the
concept of quid pro quo harassment broad and applicable to any
recipient employee, and does not limit the endless variety of verbal or
other conduct that could meet the Davis standard. While understanding
that sexual harassment causes unique harm to victims distinct from the
harm caused by other misconduct, the final regulations define sexual
harassment similar to the way in which fraud is understood in the legal
system, where ``Fraud is a generic term, which embraces all the
multifarious means which human ingenuity can devise and which are
resorted to by one individual to gain an advantage over another by
false suggestions or by the suppression of the truth.'' \630\
Similarly, sexual harassment under Sec. 106.30 is a broad term that
encompasses the ``multifarious means which human ingenuity can devise''
to foist unwelcome sex-based conduct on a victim jeopardizing
educational pursuits. Thus, the Department agrees with commenters that
some level of open-endedness is necessary to ensure that relevant
misconduct is captured. The Department believes that the Sec. 106.30
definition provides standards that are clear enough so that victims,
perpetrators, and recipients understand the type of conduct that will
be treated as sex discrimination under Title IX, and open-ended enough
to not artificially foreclose behaviors that may constitute actionable
sexual harassment.
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\630\ Stapleton v. Holt, 250 P.2d 451, 453-54 (Okla. 1952).
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The Department understands commenters' concerns that cultural
differences can impact the way that sexual harassment is experienced.
Cultural and other personal factors can affect sexual harassment and
sexual violence dynamics, and the Department believes the definition of
sexual harassment must remain applicable to all persons, regardless of
cultural or other identity characteristics. To the extent that cultural
or other personal factors affect a person's understanding about what
constitutes sexual harassment, the Department notes that with one
exception,\631\ no type of sexual harassment depends on the intent or
purpose of the perpetrator or victim. Thus, if a perpetrator commits
misconduct that meets one or more of the three prongs, any
misunderstanding due to cultural or other differences does not negate
the commission of a sexual harassment violation. Similarly, a
respondent's lack of comprehension that conduct constituting sexual
harassment violates the bodily or emotional autonomy and dignity of a
victim does not excuse the misconduct, though genuine lack of
understanding may (in a recipient's discretion) factor into the
sanction decision affecting a particular respondent, or a recipient's
willingness to facilitate informal resolution of a formal complaint of
sexual harassment.
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\631\ The one exception is the offense of ``fondling,'' included
in the Clery Act under the term ``sexual assault.'' Under the Clery
Act (referring to the FBI's Uniform Crime Reporting system),
fondling is a sex offense that means the ``touching of the private
body parts of another person for the purpose of sexual
gratification, without the consent of the victim[.]'' E.g., U.S.
Dep't. of Education, Office of Postsecondary Education, The Handbook
for Campus Safety and Security Reporting 3-6 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf. (emphasis added).
---------------------------------------------------------------------------
While the Department appreciates commenters' suggestions that
``sexual violence'' or ``sexual violations'' would be preferred terms
in place of ``sexual harassment,'' for clarity and ease of common
understanding, the Department uses ``sexual harassment'' as the Supreme
Court used that term when acknowledging that sexual harassment can
constitute a form of sex discrimination covered by Title IX.
The Department disagrees that the Davis standard inappropriately or
unfairly creates a fact-bound focus on the victim's behavior; rather,
elements of severity, pervasiveness, and objective offensiveness focus
factually on the nature of the misconduct itself--not on the victim's
response to the misconduct. To reinforce and clarify that position, we
have revised Sec. 106.30 defining ``sexual harassment'' to expressly
state that the Davis elements of severity, pervasiveness, objective
offensiveness, and effective denial of equal access, are evaluated from
the perspective of a ``reasonable person,'' so that the complainant's
individualized reaction to sexual harassment is not the focus when a
recipient is identifying and responding to Title IX sexual harassment
incidents or allegations.
Changes: We have revised the Sec. 106.30 definition of sexual
harassment by specifying that the elements in the Davis standard
(severe, pervasive, objectively offensive, and denial of equal access)
are determined under a reasonable person standard.
Comments: Several commenters asserted that the Sec. 106.30
definition ignores a multitude of objectionable actions thereby
excusing large swaths of harassing activity from scrutiny under Title
IX. Other commenters objected to the Sec. 106.30 definition on the
ground that there are a wide variety of circumstances in which
unwelcome conduct on the basis of sex would violate Title IX, but which
would fall outside the proposed definition of sexual harassment;
several such commenters argued that the net effect of the proposed
definition would be to exempt from enforcement by the Department
several distinct categories of Title IX violations, and under Title IX
the Department has no authority to create such exemptions.
A few commenters asserted that some sexual predators engage in
grooming behaviors intended to sexualize an abuser's relationships with
children gradually while building a sense of trust with intended
victims.\632\ Commenters asserted that grooming behaviors can include
behaviors such as making inappropriate jokes, sharing pornographic
photos or videos, inappropriately entering locker rooms when students
are undressing, singling out children for gifts, trips or special
tasks, and finding times and places to be alone with children.
Commenters argued that under the proposed rules, these behaviors might
not meet the definition of sexual harassment, yet responding to such
behaviors is essential to preventing child sexual abuse.
---------------------------------------------------------------------------
\632\ Commenters cited: Helen C. Whittle et al., A Comparison of
Victim and Offender Perspectives of Grooming and Sexual Abuse, 36
Deviant Behavior 7 (2015).
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Some commenters expressed concern that the Sec. 106.30 definition
discounts certain types of sex-based harassment that, although
ostensibly ``less severe,'' nonetheless adversely affect survivors'
participation in educational programs. A few such commenters
categorized types of sex-based harassment \633\ as: (i)
[[Page 30145]]
``Sexual assault'' defined as involving any unwelcome sexual contact,
which the commenters stated is covered by the proposed rules'
definition of harassment; (ii) ``sex-based harassment'' as an umbrella
term to mean behavior that derogates, demeans, or humiliates an
individual based on that individual's sex but does not involve physical
contact, and which comes in three forms: ``Sexual coercion'' or quid
pro quo involving bribes or threats that make an important outcome
contingent on the victim's sexual cooperation; ``unwanted sexual
attention'' involving expressions of romantic or sexual interest that
are unwelcome, unreciprocated, and offensive to the recipient; and
``gender harassment'' encompassing verbal and nonverbal behaviors not
aimed at sexual cooperation but that convey insulting, hostile, and
degrading attitudes about one sex (though devoid of sexual content).
These commenters asserted that while sexual coercion remains covered
under the Sec. 106.30 definition (under the first prong regarding quid
pro quo harassment), unwanted sexual attention is covered only if it is
so severe, pervasive, and objectively offensive that it effectively
denies a person equal access to education, and gender harassment is not
covered at all by the regulatory definition even though it is the most
common type of sex-based harassment in academia as well as the
workplace. These commenters also asserted that research shows that
gender harassment that is either severe or occurs frequently over a
period of time can result in the same level of negative professional,
academic, and psychological outcomes as isolated incidents of sexual
coercion.\634\ These commenters concluded that the only way to truly
combat sexual harassment is to enact policies that address and prevent
the most common form of sexual harassment (i.e., gender harassment).
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\633\ Commenters cited: Louise Fitzgerald et al., Measuring
sexual harassment: Theoretical and psychometric advances, 17 Basic &
Applied Social Psychol. 4 (1995); Jennifer L. Berdahl, Harassment
based on sex: Protecting social status in the context of gender
hierarchy, 32 Acad. of Mgmt. Rev. 641 (2007); Emily Leskinen et al.,
Gender harassment: Broadening our understanding of sex-based
harassment at work, 35 Law & Hum. Behavior 1 (2011); National
Academies of Science, Engineering, and Medicine, Sexual Harassment
of Women: Climate, Culture, and Consequences in Academic Sciences,
Engineering, and Medicine (Frasier F. Benya et al. eds., 2018).
\634\ Commenters cited: National Academies of Science,
Engineering, and Medicine, Sexual Harassment of Women: Climate,
Culture, and Consequences in Academic Sciences, Engineering, and
Medicine 69 (Frasier F. Benya et al. eds., 2018). Commenters further
noted that sexual minorities experience gender harassment at more
than double the rates of heterosexuals. Id. at 46.
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Several commenters expressed concern that the proposed rules do not
expressly address how technology has changed in the decades since Title
IX was enacted (e.g., email, the internet) and asserted that the final
regulations must squarely address cyber-harassment on the basis of sex,
which commenters stated is a severe and growing trend for
students.\635\ In addition to asking that online or cyber-harassment be
explicitly referenced, several of these commenters also asserted that
the appropriate standard for judging whether cyber-harassment must be
responded to is whether such harassment meets the description of
harassment set forth in the Department's 2001 Guidance.
---------------------------------------------------------------------------
\635\ Commenters cited: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011), for
the proposition that: In the 2010-2011 school year, 36 percent of
girls, 24 percent of boys, and 30 percent of all students who took
the survey in grades seven through 12 experienced sexual harassment
online; 18 percent of these students did not want to go to school,
13 percent found it hard to study, 17 percent had trouble sleeping,
and eight percent wanted to stay home from school. Commenters also
asserted that college students, too, face online sexual harassment,
and in support of this assertion, some commenters cited to: David
Goldman, Campus Uproar Over Yik Yak App After Sex, Harassment,
Murder, CNN.com (May 7, 2015), https://money.cnn.com/2015/05/07/technology/yik-yak-university-of-mary-washington/index.html.
---------------------------------------------------------------------------
Several commenters asserted that school boards in elementary and
secondary schools will encounter confusion among the proposed Title IX
sexual harassment regulatory definition, State laws governing bullying,
abuse, or crimes that mandate reports to law enforcement or child
welfare agencies, and school discipline violations, each of which has
its own procedures that must be followed. Similarly, several commenters
asserted that postsecondary institutions will encounter confusion due
to differences between the Sec. 106.30 definition of sexual harassment
and various State laws that define sexual harassment or sexual
misconduct more broadly; these commenters referenced laws in states
such as California, New York, New Jersey, Illinois, and others.
At least one commenter asserted that the requirement that any of
the conduct defined as sexual harassment under Sec. 106.30 must be
``on the basis of sex'' lacks guidance as to how that element must be
applied; one commenter wondered if this element means that a
complainant must try to prove the respondent's state of mind when most
respondents would simply deny acting on the basis of the victim's sex
and insist that the action was based on romance, anger, emotion, etc.,
or whether a complainant would need to provide statistics to show a
disparate impact on people of the victim's sex in order to show that
the respondent's conduct was ``on the basis of sex.''
At least one commenter urged the Department to seek input from
stakeholders, including education leaders, on what types of technical
assistance would be most helpful to school districts seeking to
implement the regulatory definition.
Discussion: The Department acknowledges that not every instance of
subjectively unwelcome conduct is captured under the three-pronged
definition of sexual harassment in Sec. 106.30. However, the
Department believes that the conduct captured as actionable under Title
IX constitutes precisely the sex-based conduct that the Supreme Court
has indicated amounts to sex discrimination under Title IX, as well as
physical conduct that might not meet the Davis definition (e.g., a
single instance of rape, or a single instance of quid pro quo
harassment). The Department disagrees that it is exempting categories
of Title IX violations from coverage under Title IX; to the contrary,
the Sec. 106.30 definition ensures that sex discrimination in the form
of sexual harassment clearly falls under recipients' Title IX
obligations to operate education programs and activities free from sex
discrimination.
The Department appreciates commenters' concerns regarding grooming
behaviors, which can facilitate sexual abuse. While the sexual
harassment definition does not identify ``grooming behaviors'' as a
distinct category of misconduct, some of the conduct identified by
commenters and experts as constituting grooming behaviors may
constitute Sec. 106.30 sexual harassment, and behaviors that do not
constitute sexual harassment may still be recognized as suspect or
inappropriate and addressed by recipients outside Title IX obligations.
Similarly, the Department understands commenters' and experts'
assertions that unwelcome conduct that is not ``severe'' can still
adversely impact students and employees. The 2018 comprehensive report
on ``Sexual Harassment of Women'' by the National Academies of
Sciences, Engineering, and Medicine (NASEM) \636\ helpfully synthesizes
decades of sexual harassment research and analysis to classify sex-
based harassment as either sexual assault, or any of three types of
sex-based harassment (sexual coercion, unwanted sexual attention, or
gender harassment). The Department agrees with commenters' assertions
that sexual
[[Page 30146]]
assault and sexual coercion \637\ are covered under the regulatory
definition, and agrees that unwanted sexual attention is covered if
such conduct meets the second prong (the Davis standard), but the
Department disagrees with commenters' assertion that what NASEM and
others label as ``gender harassment'' is not covered under Sec.
106.30. What the Department understands NASEM and commenters to mean by
gender harassment is verbal and nonverbal behaviors, devoid of sexual
content, that convey insulting, hostile, degrading attitudes about a
particular sex. The language of the second prong of the Sec. 106.30
definition describes conduct on the basis of sex that is unwelcome,
determined by a reasonable person to be so severe, pervasive, and
objectively offensive that it effectively denies a person equal access
to education. That description encompasses what commenters label as
``gender harassment'' (as well as what commenters label ``unwanted
sexual attention'') where the verbal or other conduct meets the Davis
elements. Thus, the Sec. 106.30 definition appropriately covers what
NASEM and commenters describe as the most common type of sex-based
harassment in academia and the workplace, as well as other types of
sexual harassment identified by such commenters and experts. The
Department appreciates the efforts made by NASEM and others to analyze
the prevalence of sexual harassment within academia and to recommend
approaches to reduce that prevalence, and believes that these final
regulations appropriately regulate sexual harassment as a form of Title
IX sex discrimination, while respecting the Department's legal
obligations to enforce the civil rights statute as passed by Congress,
and apply statutory interpretations consistent with First Amendment and
other constitutional protections. The Department understands that
research demonstrates that the negative impact of persistent (though
not severe) harassment may be similar to the impact of a single
instance of severe harassment. However, guided by the Supreme Court's
Davis opinion, the Department believes that unwelcome conduct (that
does not constitute quid pro quo harassment or a Clery Act/VAWA offense
included in Sec. 106.30) rises to a civil rights violation where the
seriousness (determined by a reasonable person to be so severe,
pervasive, objectively offensive, that it negatively impacts equal
access) jeopardizes educational opportunities. While non-severe
instances of unwelcome harassment may negatively impact a person, and
recipients retain authority to address such instances, Title IX is
focused on sex discrimination that jeopardizes educational access.
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\636\ Commenters cited: National Academies of Science,
Engineering, and Medicine, Sexual Harassment of Women: Climate,
Culture, and Consequences in Academic Sciences, Engineering, and
Medicine (Frasier F. Benya et al. eds., 2018).
\637\ Commenters referred to ``sexual coercion'' as quid pro quo
harassment.
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The Department understands that technology has evolved in the
decades since Title IX was enacted, and that the means for perpetrating
sexual harassment in modern society may include use of electronic,
digital, and similar methods. The Sec. 106.30 sexual harassment
definition does not make sexual harassment dependent on the method by
which the harassment is carried out; use of email, the internet, or
other technologies may constitute sexual harassment as much as use of
in-person, postal mail, handwritten, or other communications. For
reasons described throughout this section of the preamble, and in the
``Adoption and Adaption of the Supreme Court's Framework to Address
Sexual Harassment'' section of this preamble, the Department believes
that the Sec. 106.30 definition is superior to the definition of
sexual harassment in the 2001 Guidance.
The Department acknowledges that a myriad of State and Federal laws
overlap in addressing misconduct, some of which may be criminal,
violative of State civil rights laws, or safety-related (such as anti-
bullying legislation), and that elementary and secondary schools, as
well as postsecondary institutions, face challenges in meeting
obligations under various laws, as well as recipients' own policies.
The Department notes that a recipient's agreement to accept Federal
financial assistance obligates the recipient to comply with Title IX
with respect to education programs or activities, and that compliance
with Title IX does not obviate the need for a recipient also to comply
with other laws. The Department does not view a difference between how
``sexual harassment'' is defined under these final regulations and a
different or broader definition of sexual harassment under various
State laws as creating undue confusion for recipients or a conflict as
to how recipients must comply with Title IX and other laws. While
Federal Title IX regulations require a recipient to respond to sexual
harassment as defined in Sec. 106.30, a recipient may also need to
respond to misconduct that does not meet that definition, pursuant to a
State law. The Department more thoroughly discusses the interaction
between these final regulations and State laws in the ``Section
106.6(h) Preemptive Effect'' subsection of the ``Clarifying Amendments
to Existing Regulations'' section.
The Department appreciates commenters' concerns about how to apply
the prerequisite element that sexual harassment is conduct ``on the
basis of sex.'' The Department notes that the Title IX statute
prohibits exclusion, denial of benefits, and subjection to
discrimination ``on the basis of sex,'' and the Department cannot
remove that qualifier in describing conduct prohibited under Title IX
because Congress intended for Title IX to provide individuals with
effective protections against discriminatory practices \638\ ``on the
basis of sex.'' \639\ Discriminatory practices on other bases or
protected characteristics are not part of Title IX's non-discrimination
mandate. To clarify that all the conduct defined as sexual harassment
must be ``on the basis of sex,'' the final regulations revise Sec.
106.30 by removing that phrase from the second prong, and inserting it
into the introductory sentence that now begins ``Sexual harassment
means conduct on the basis of sex that satisfies one or more of the
following'' and then goes on to list the three prongs of the
definition.
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\638\ See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
\639\ 20 U.S.C. 1681(a).
---------------------------------------------------------------------------
The Department appreciates the opportunity to clarify that whether
conduct is ``on the basis of sex'' does not require probing the
subjective motive of the respondent (e.g., whether a respondent
subjectively targeted a complainant because of the complainant's or the
respondent's actual or perceived sex, as opposed to because of anger or
romantic feelings). Where conduct is sexual in nature, or where conduct
references one sex or another, that suffices to constitute conduct ``on
the basis of sex.'' In Gebser and again in Davis, the Supreme Court
accepted sexual harassment as a form of sex discrimination without
inquiring into the subjective motive of the perpetrator (a teacher in
Gebser and a student in Davis).\640\ The Department follows the
[[Page 30147]]
Supreme Court's approach in interpreting conduct ``on the basis of
sex'' to include conduct of a sexual nature, or conduct referencing or
aimed at a particular sex.\641\
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\640\ See, e.g., Davis, 526 U.S. at 643 (assuming without
analysis that sexual harassment constitutes sex discrimination, in
stating that Gebser recognized that ``whether viewed as
discrimination or subjecting students to discrimination, Title IX
unquestionably . . . placed on [the Board] the duty not to permit
teacher-student harassment in its schools'') (internal quotation
marks and citation omitted); id. at 650 (``having previously
determined that `sexual harassment' is `discrimination' in the
school context under Title IX, we are constrained to conclude that
student-on-student sexual harassment, if sufficiently severe, can
likewise rise to the level of discrimination actionable under the
statute.''); id. at 650-51 (equating physical threats directed at
female students, not of a sexual nature, with sexual harassment and
thereby sex discrimination by stating: ``The most obvious example of
student-on-student sexual harassment . . . would thus involve the
overt, physical deprivation of access to school resources. Consider,
for example, a case in which male students physically threaten their
female peers every day, successfully preventing the female students
from using a particular school resource--an athletic field or a
computer lab, for instance.'').
\641\ This approach finds analytic support in works such as
Kathleen M. Franke, What's Wrong with Sexual Harassment?, 49 Stan.
L. Rev. 691, 771-72 (1997), noting that ``to date, the Supreme Court
has been disinclined to do more than summarily conclude that sexual
harassment is a form of sex discrimination'' under Title VII and
supporting an approach to ``because of sex'' that focuses on the
conduct, not the perpetrator's motive, but arguing that a
theoretical justification for why sexual harassment constitutes sex
discrimination that justifies such ``evidentiary short cuts'' should
rely on recognition that sexual harassment is a ``tool or instrument
of gender regulation,'' undertaken ``in the service of hetero-
patriarchal norms'' that are ``punitive in nature [and] produce
gendered subjects: Feminine women as sex objects and masculine men
as sex subjects'' making sexual harassment a form of sex
discrimination ``precisely because its use and effect police hetero-
patriarchal gender norms[.]'' With a theoretical understanding of
why sexual harassment might constitute sex discrimination as a
backdrop, sex discrimination can be inferred in individual cases
from the existence of sexual harassment, justifiably obviating a
need to require ``proof'' that a particular plaintiff experienced
sexual harassment on the basis of, or because of, the plaintiff's
and/or defendant's sex, instead keeping the focus of each case on
the misconduct itself. Id.
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The Department appreciates a commenter's recommendation to seek
input from stakeholders on what types of technical assistance would be
most helpful to school districts in implementing the final regulations,
and the Department will act on that recommendation by seeking such
input from school districts and other recipients with respect to robust
technical assistance to help recipients implement the Sec. 106.30
definition and other provisions of the final regulations.
Changes: We have revised Sec. 106.30 defining ``sexual
harassment'' by moving the phrase ``on the basis of sex'' from the
second prong to the introductory sentence applying to all three prongs
of the definition of sexual harassment, such that any of the conduct
defined as ``sexual harassment'' must be ``on the basis of sex.''
Prong (1) Quid Pro Quo
Comments: At least two commenters questioned whether the quid pro
quo prong of the Sec. 106.30 definition would apply only if the
employee's conditioning of an educational benefit was express (as
opposed to implied, or reasonably perceived by the victim as a threat
to withhold a benefit), and if this prong required a subjective intent
on the part of the recipient's employee to deny the aid or benefit even
if such intent was not communicated when the harassment occurred. One
such commenter asserted that it is important for potential harassers
and potential victims to understand what conduct is prohibited and thus
the final regulations need to specify whether the quid pro quo nature
of the harassment must be expressly communicated, or may be implied by
the circumstances; this commenter stated that even courts do not
require that a harasser explicitly articulate all the terms and
conditions of the ``bargain of exchange'' being proposed in a quid pro
quo harassment situation.
At least one commenter asserted that the final regulations need to
clarify that ``consenting'' to unwelcome sexual conduct, or avoiding
potential adverse consequences without providing the requested sexual
favors, does not mean that quid pro quo harassment did not occur.
One commenter believed that quid pro quo harassment needs to also
be severe, pervasive, and objectively offensive.
A few commenters asserted that the quid pro quo prong of the sexual
harassment definition should be expanded to include more persons than
just ``employees'' of the recipient, because students may also hold
positions of authority over other students (for example, team captains,
club presidents, graduate assistants, resident advisors) and non-
employees often have regular, recipient-approved contact with students
and function as agents of the recipient (for example, people
supervising internships or clinical experiences, employees of vendors
or contracted service providers, volunteers who regularly participate
in programs or activities, or board of trustees members who serve as
unpaid volunteers). One such commenter argued that the quid pro quo
prong is too narrow because all people (not just employees) providing
any services as part of a recipient's business should not condition
services on sexual favors but also should not perpetrate any unwelcome
sexual conduct or create a hostile environment.
One commenter urged the Department to clarify that in the
elementary and secondary school context, even a consensual, welcome
sexual relationship between a student and teacher counts as sexual
harassment because such a relationship is an abuse of the teacher's
power over the student; the commenter asserted that the teacher-student
relationship in Gebser may have been consensual but was still sexual
harassment.
Discussion: The Department appreciates the opportunity to clarify
that the first prong of the Sec. 106.30 definition, describing quid
pro quo harassment, applies whether the ``bargain'' proposed by the
recipient's employee is communicated expressly or impliedly. Making
educational benefits or opportunities contingent on a person's
participation in unwelcome conduct on the basis of sex strikes at the
heart of Title IX's mandate that education programs and activities
remain free from sex discrimination; thus, the Department interprets
the quid pro quo harassment description broadly to encompass situations
where the quid pro quo nature of the incident is implied from the
circumstances.\642\ For the same reason, the Department declines to
require that quid pro quo harassment be severe and pervasive; abuse of
authority in the form of even a single instance of quid pro quo
harassment (where the conduct is not ``pervasive'') is inherently
offensive and serious enough to jeopardize equal educational
access,\643\ and although
[[Page 30148]]
such harassment may involve verbal conduct there is no risk of chilling
protected speech or academic freedom by broadly prohibiting quid pro
quo harassment because such verbal conduct by definition is aimed at
compelling a person to submit to unwelcome conduct as a condition of
maintaining educational benefits.\644\ The Department notes that when a
complainant acquiesces to unwelcome conduct in a quid pro quo context
to avoid potential negative consequences, such ``consent'' does not
necessarily mean that the sexual conduct was not ``unwelcome'' or that
prohibited quid pro quo harassment did not occur.\645\
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\642\ As the Davis Court recognized, the relationship between a
teacher and student makes it even more likely than with peer
harassment that sexual harassment threatens the equal educational
access guaranteed by Title IX. See Davis, 526 U.S. at 653 (``The
fact that it was a teacher who engaged in harassment in Franklin and
Gebser is relevant. The relationship between the harasser and the
victim necessarily affects the extent to which the misconduct can be
said to breach Title IX's guarantee of equal access to educational
benefits and to have a systemic effect on a program or activity.
Peer harassment, in particular, is less likely to satisfy these
requirements than is teacher-student harassment.'').
\643\ Similarly, where quid pro quo harassment may not be
``severe'' (for example, where the unwelcome sexual conduct consists
of rubbing student's back or other conduct that may not meet the
``severity'' element and would not constitute sexual assault but
does consist of unwelcome conduct of a sexual nature), quid pro quo
harassment is inherently serious enough to jeopardize equal
educational access. Thus, quid pro quo harassment constitutes sexual
harassment under Sec. 106.30, without being evaluated for severity,
pervasiveness, and objective offensiveness. Determining whether
unwelcome sexual conduct is proposed, suggested, or directed at a
complainant, by a recipient's employee, as part of the employee
``conditioning'' an educational benefit on participation in the
unwelcome conduct, does not require the employee to expressly tell
the complainant that such a bargain is being proposed, and the age
and position of the complainant is relevant to this determination.
For example, elementary and secondary school students are generally
expected to submit to the instructions and directions of teachers,
such that if a teacher makes a student feel uncomfortable through
sex-based or other sexual conduct (e.g., back rubs or touching
students' shoulders or thighs), it is likely that elementary and
secondary school students will interpret that conduct as implying
that the student must submit to the conduct in order to maintain
educational benefits (e.g., not getting in trouble, or continuing to
please the teacher and earn good grades). This approach to sexual
harassment by a recipient's employees is in line with the Gebser/
Davis framework, where the Supreme Court noted that any sexual
harassment by a teacher or school employee likely deprives a student
of equal educational opportunities. See Davis, 526 U.S. at 653. In
situations where an employee did not intend to commit quid pro quo
harassment (for instance, where the teacher did not realize that
what the teacher believed were friendly back rubs had sexual
overtones and made students feel uncomfortable), the recipient may
take the specific factual circumstances into account in deciding
what remedies are appropriate for the complainants and what
disciplinary sanctions are appropriate for the respondent.
\644\ Quid pro quo harassment should be interpreted broadly in
part because although a teacher, coach, or other employee
perpetrating a quid pro quo conditioning of benefits may use speech
in proposing or inflicting such a Hobson's choice on a student, that
speech is incidental to the conduct (sex discriminatory abuse of
authority) and a broad rule prohibiting such conduct raises no
constitutional concerns. See, e.g., Saxe v. State Coll. Area Sch.
Dist., 240 F.3d 200, 207 (3d Cir. 2001) (``government may
constitutionally prohibit speech whose non-expressive qualities
promote discrimination. For example, a supervisor's statement `sleep
with me or you're fired' may be proscribed not on the ground of any
expressive idea that the statement communicates, but rather because
it facilitates the threat of discriminatory conduct. 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.' '') (emphasis in original).
\645\ The approach in these final regulations to quid pro quo
harassment is consistent with the 2001 Guidance at 5 (stating that
quid pro quo harassment does not depend on whether ``the student
resists and suffers the threatened harm or submits and avoids the
threatened harm'' and that a prohibited quid pro quo bargain may
occur ``explicitly or implicitly'').
---------------------------------------------------------------------------
The Department believes that the quid pro quo harassment
description is appropriately and sufficiently broad because it applies
to all of a recipient's employees, so that it includes situations
where, for instance, a teacher, faculty member, or coach holds
authority and control over a student's success or failure in a class or
extracurricular activity, and the Department declines to expand the
description to include non-employee students, volunteers, or others not
deemed to be a recipient's employee. The Department understands
commenters' concerns that non-employees are sometimes in positions
sanctioned by the recipient to exercise control over students (or
employees) or to distribute benefits on behalf of the recipient.
However, the Department is persuaded by the Supreme Court's rationale
in Gebser that Title IX and Title VII differ with respect to statutory
reliance on agency principles.\646\ The Department believes that the
Sec. 106.30 quid pro quo harassment prong reasonably holds recipients
responsible for the conduct of the recipient's employees without
expanding that liability to all agents of a recipient. However, the
unwelcome conduct of a non-employee individual may constitute sexual
harassment under the second or third prongs of the Sec. 106.30
definition.
---------------------------------------------------------------------------
\646\ Gebser, 524 U.S. at 283 (``Moreover, Meritor's rationale
for concluding that agency principles guide the liability inquiry
under Title VII rests on an aspect of that statute not found in
Title IX: Title VII, in which the prohibition against employment
discrimination runs against `an employer,' 42 U.S.C. 2000e-2(a),
explicitly defines `employer' to include `any agent,' Sec.
2000e(b). . . . Title IX contains no comparable reference to an
educational institution's `agents,' and so does not expressly call
for application of agency principles.'').
---------------------------------------------------------------------------
In response to a commenter's request that the final regulations
state that sexual conduct between a teacher and student counts as
sexual harassment even where the conduct is consensual and welcome from
the student's viewpoint, the third prong of the Sec. 106.30 definition
refers to ``sexual assault'' as described in the Clery Act, which in
turn references sex offenses under the FBI's Uniform Crime Reporting
system, including statutory rape (that is, sex with a person who is
under the statutory age of consent).\647\ With respect to students who
are underage in their jurisdiction, a sexual relationship like that in
Gebser between a teacher and student \648\ would therefore count as
sexual harassment under Sec. 106.30, regardless of whether the victim
nominally consented or welcomed the sexual activity. Furthermore, the
Department interprets ``unwelcome'' as used in the first and second
prongs of the Sec. 106.30 definition of sexual harassment as a
subjective element; thus, even if a complainant in a quid pro quo
situation pretended to welcome the conduct (for instance, due to fear
of negative consequences for objecting to the employee's suggestions or
advances in the moment), the complainant's subjective statement that
the complainant found the conduct to be unwelcome suffices to meet the
``unwelcome'' element.
---------------------------------------------------------------------------
\647\ 20 U.S.C. 1092(f)(6)(A)(v).
\648\ Gebser, 524 U.S. at 278 (describing the relationship
between the teacher and student in that case as involving sexual
intercourse).
---------------------------------------------------------------------------
Changes: None.
Prong (2) Davis Standard
Davis Standard Generally
Comments: Several commenters supported the second prong of the
Sec. 106.30 definition of sexual harassment, which is derived from the
Supreme Court's Davis opinion. One commenter stated that previous
Department guidance changed the ``and'' to ``or'' in the ``severe,
pervasive, and objectively offensive'' formulation and asserted that
this resulted in over-enforcement and sparked criticism from experts
and law professors, including the Association of Title IX
Administrators (ATIXA).\649\ This commenter argued that while victim
advocates have argued that the Davis standard should apply only to
private lawsuits against schools, it seems illogical to subject schools
to two separate standards of responsibility concerning the same
conduct, and the Davis standard does not let schools ``off the hook.''
---------------------------------------------------------------------------
\649\ Commenters cited: Eugene Volokh, Open Letter from 16 Penn
Law Professors about Title IX and Sexual Assault Complaints, Volokh
Conspiracy (Feb. 19, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/19/open-letter-from-16-penn-law-school-professors-about-title-ix-and-sexual-assault-complaints/; Law
Professors' Open Letter Regarding Campus Free Speech and Sexual
Assault (May 16, 2016), https://www.lankford.senate.gov/imo/media/doc/Law-Professor-Open-Letter-May-16-2016.pdf; Jacob E. Gerson &
Jeannie Suk Gersen, The Sex Bureaucracy, 104 Cal. L. Rev. 881
(2016); National Center for Higher Education Risk Management
(NCHERM), The 2017 NCHERM Group Whitepaper: Due Process and the Sex
Police 2, 15 (2017) (``Some pockets in higher education have twisted
the 2011 Office for Civil Rights (OCR) Dear Colleague Letter (DCL)
and Title IX into a license to subvert due process and to become the
sex police. . . . [T]his Whitepaper [and another ATIXA publication]
push back strongly against both of those trends in terms of best
practices.'').
---------------------------------------------------------------------------
On the contrary, many commenters opposed the second prong of the
Sec. 106.30 definition because it uses a standard designed to award
money damages in private litigation, not administrative enforcement
designed to promote equal educational opportunity. Some commenters
argued that Gebser does not actually define sexual harassment and that
Davis cited to the Supreme Court's Meritor opinion indicating intent to
utilize the same definition for sexual harassment under Title IX as the
Court has used under Title VII. One commenter argued that the Davis
Court inaccurately paraphrased the Meritor decision when stating
``and'' instead of ``or'' (in
[[Page 30149]]
``severe, pervasive, and objectively offensive''), and asserted there
is nothing in the Davis opinion that indicates that the Court intended
to apply a higher standard for hostile environment harassment under
Title IX than under Title VII.
At least one commenter asserted that if students cannot receive
different recourse from the Department than they can in Federal courts,
then students will find civil litigation to be a better avenue which
will lead to costly redirection of school resources toward defending
Title IX litigation, a result exacerbated by the fact that the final
regulations expressly prohibit awards of money damages in Department
enforcement actions while money damages are available in private
lawsuits.
At least one commenter argued that with regard to student-on-
student harassment, the Supreme Court in Davis did not modify Gebser by
defining ``sexual harassment'' in some limited way; rather, Davis
addressed the amount and type of sexual harassment (as that phrase is
commonly understood) which, if engaged in by a student harasser, would
constitute ``discrimination'' and thus violate Title IX. At least one
commenter argued that the NPRM failed to recognize the difference
between the anti-discrimination clause and the anti-exclusion clause of
the Title IX statute \650\ by incorrectly assigning the purpose of the
anti-discrimination clause to the anti-exclusion clause. One such
commenter argued that the purpose of the anti-discrimination clause is
to forbid gender-based adverse action under a covered program or
activity, regardless of whether that action has any impact on the
victim's access to that program or activity while the purpose of the
anti-exclusion clause is to protect access to a program or activity,
regardless of whether the misconduct potentially affecting access
occurs under, or outside, that program or activity.
---------------------------------------------------------------------------
\650\ Title IX, codified at 20 U.S.C. 1681(a): ``No person in
the United States shall, on the basis of sex, be excluded from
participation in, denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance[.]''
---------------------------------------------------------------------------
One commenter argued that the NPRM's definition of hostile
environment sexual harassment does not allow for the central method of
analysis that both courts and existing Department guidance have
instructed schools to use in evaluating sexual harassment complaints:
Balancing relevant factors in recognition of the totality of the
circumstances. The commenter asserted that this holistic approach is
crucial for recipients to fulfill their Title IX responsibilities to
prevent the discriminatory conduct's occurrence and end it when it does
occur. At least one commenter similarly argued that the ``severe and
pervasive'' prong of the definition creates ambiguity from lack of
guidance on how to apply the standard and without such guidance schools
will screen out situations that should be addressed.
A few commenters noted that the second prong of the Sec. 106.30
definition appropriately requires actionable harassment to be severe,
pervasive, and objectively offensive yet leaves recipients flexibility
to address misconduct that does not meet that standard through codes of
conduct outside the Title IX context.
Discussion: The Department appreciates commenters' support for the
Davis definition of actionable sexual harassment embodied in the second
prong of the Sec. 106.30 definition. The Department agrees that
adopting the Davis standard for harassment that does not constitute
quid pro quo harassment or a Clery Act/VAWA offense, included in Sec.
106.30, appropriately holds recipients responsible for addressing
serious, unwelcome sex-based conduct that deprives a person of equal
access to education, while avoiding constitutional concerns raised by
subjecting speech and expression to the chilling effect of prior
restraints. The Department agrees that aligning the Title IX sexual
harassment definition in administrative enforcement and private
litigation contexts provides clear, consistent expectations for
recipients without letting recipients ``off the hook.'' The Department
chooses to adopt in these final regulations the Davis standard defining
actionable sexual harassment, as one of three parts of a sexual
harassment definition. This approach provides consistency with the
Title IX rubric for judicial and administrative enforcement and gives a
recipient flexibility and discretion to address sexual harassment while
ensuring that complainants can rely on their school, college, or
university to meaningfully respond to a sexual harassment incident.
The Department understands the argument of many commenters that
adoption of the Gebser/Davis framework is not legally required and
therefore the Department should adopt a broader approach to
administrative enforcement than that applied by the Supreme Court in
private Title IX lawsuits. The Supreme Court did not restrict its
Gebser/Davis approach to private lawsuits for money damages, and the
Department believes that the Supreme Court's framework provides the
appropriate starting point for administrative enforcement of Title IX,
with adaptions of that framework to hold recipients responsible for
more than what the Gebser/Davis framework alone would require.\651\
---------------------------------------------------------------------------
\651\ For further discussion, see the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment'' section
of this preamble.
---------------------------------------------------------------------------
The Department disagrees with a commenter who asserted that the
Davis Court mistakenly or inaccurately ``paraphrased'' the Meritor
description of actionable workplace harassment; rather, the Department
believes that the Davis Court intentionally and accurately acknowledged
the ``severe or pervasive'' formulation in Meritor yet determined that
the ``severe and pervasive'' standard was more appropriate in the
educational context. The Department notes that the Davis Court repeated
the ``severe and pervasive'' formulation five times \652\ showing that
the Court noted differences between an educational and workplace
environment that warranted a different standard under Title IX than
under Title VII.\653\
---------------------------------------------------------------------------
\652\ Davis, 526 U.S. at 633, 650, 651, 652, 654.
\653\ Id. at 651 (``Courts, moreover, must bear in mind that
schools are unlike the adult workplace and that children may
regularly interact in a manner that would be unacceptable among
adults. . . . Indeed, at least early on, students are still learning
how to interact appropriately with their peers.'').
---------------------------------------------------------------------------
The Department disagrees with the commenter who asserted that the
Department's adoption of Davis standards will lead to increased
litigation against recipients because students will see no difference
between recourse from the Department and recourse available in private
litigation. While one of the three prongs of the Sec. 106.30 sexual
harassment definition is adopted from Davis, the other two prongs
differ from the Davis standard; moreover, the other parts of the
Gebser/Davis framework adopted by the Department in the final
regulations adapt that framework in a way that broadens the scope of a
complainant's rights vis-[agrave]-vis a recipient (for example, the
actual knowledge condition in the final regulations is defined broadly
to include notice to any Title IX Coordinator and any elementary or
secondary school employee, in addition to officials with authority to
take corrective action; the deliberate indifference standard expressly
requires a recipient to offer supportive measures to a complainant and
for a Title IX Coordinator to discuss supportive measures with a
complainant, with or without the filing of a formal complaint and to
explain to a complainant the process for filing a formal complaint).
[[Page 30150]]
Therefore, while rooted in the Supreme Court's framework, the final
regulations appropriately impose requirements on recipients that
benefit complainants, which Federal courts applying the Davis framework
do not impose.\654\ We have also revised Sec. 106.3(a) to remove
reference to whether the Department will or will not seek money damages
as part of remedial action required of a recipient for Title IX
violations; for further discussion, see the ``Section 106.3(a) Remedial
Action'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble.
---------------------------------------------------------------------------
\654\ Consistent with constitutional due process and fundamental
fairness, these final regulations also ensure that a recipient's
supportive response to a complainant treats respondents equitably by
refraining from punishing or disciplining a respondent without
following a grievance process that complies with Sec. 106.45. Sec.
106.44(a); Sec. 106.45(b)(1)(i); Sec. 106.30 (defining
``supportive measures'' as non-punitive, non-disciplinary, not
unreasonably burdensome to the other party); see also the ``Role of
Due Process in the Grievance Process'' section of this preamble.
---------------------------------------------------------------------------
The Department agrees with a commenter's characterization of Davis
as not so much redefining sexual harassment as describing the amount
and type of sexual harassment that constitutes sex discrimination under
Title IX. Likewise, while the Department refers to a ``definition'' of
sexual harassment in Sec. 106.30, the Department notes that the
provision describes what amount and type of sexual harassment is
actionable under Title IX; that is, what conditions activate a
recipient's legal obligation to respond.
The Department disagrees with commenters who argued that the Davis
standard in the second prong of Sec. 106.30 fails to recognize the
difference between the anti-discrimination clause and the anti-
exclusion clause of Title IX. In Davis, the Supreme Court acknowledged
that Title IX contains three separate clauses (anti-exclusion, denial
of benefits, anti-discrimination), yet with respect to actionable
sexual harassment under Title IX the Davis Court repeatedly used the
formulation of sexual harassment that is ``severe, pervasive, and
objectively offensive,'' at one point seeming to equate it with the
denial of benefits clause and at others seeming to equate it with the
``subjected to discrimination'' clause.\655\ Regardless of which of the
three Title IX statutory clauses the Davis Court attached to its sexual
harassment standard, the Court emphasized several times that the
harassment must ``deprive the victims of access to the educational
opportunities or benefits provided by the school'' \656\ or must have
``effectively denied equal access to an institution's resources and
opportunities'' \657\ or ``that it denies its victims the equal access
to education that Title IX is designed to protect.'' \658\ The Supreme
Court's understanding of sexual harassment as prohibited conduct under
Title IX requires sexual harassment to meet a seriousness standard
involving denial of equal access to education, regardless of whether
the sexual harassment is viewed as causing denial of benefits,
exclusion from participation, or subjection to discrimination.
---------------------------------------------------------------------------
\655\ 526 U.S. at 650 (``The statute's other prohibitions,
moreover, help give content to the term `discrimination' in this
context. Students are not only protected from discrimination, but
also specifically shielded from being `excluded from participation
in' or `denied the benefits of' any `education program or activity
receiving Federal financial assistance.' 20 U.S.C. 1681(a). The
statute makes clear that, whatever else it prohibits, students must
not be denied access to educational benefits and opportunities on
the basis of gender. We thus conclude that funding recipients are
properly held liable in damages only where they are deliberately
indifferent to sexual harassment, of which they have actual
knowledge, that is so severe, pervasive, and objectively offensive
that it can be said to deprive the victims of access to the
educational opportunities or benefits provided by the school.'');
id. at 644-45 (holding that a recipient is liable where its
``deliberate indifference `subjects' its students to harassment--
``That is, the deliberate indifference must, at a minimum, `cause
[students] to undergo' harassment or `make them liable or
vulnerable' to it.'') (internal citations omitted).
\656\ Id. at 650.
\657\ Id. at 651.
\658\ Id. at 652.
---------------------------------------------------------------------------
The Department disagrees that the Sec. 106.30 definition of sexual
harassment precludes or disallows a totality of the circumstances
analysis to evaluate whether alleged conduct does or does not meet the
definition. The Davis Court noted that evaluation of whether conduct
rises to actionable sexual harassment depends on a constellation of
factors including the ages and numbers of parties involved,\659\ and
nothing in the final regulations disallows or disapproves of that
common sense approach to determinations of severity, pervasiveness, and
objective offensiveness. To reinforce this, the final regulations
include language in the second prong of the Sec. 106.30 definition
stating that the Davis elements are determined under a reasonable
person standard. The Department does not believe that recipients will
``screen out'' situations that should be addressed due to lack of
guidance on how to apply the ``severe and pervasive'' elements; the
Department is confident that recipients' desire to provide students
with a safe, non-discriminatory learning environment will lead
recipients to evaluate sexual harassment incidents using common sense
and taking circumstances into consideration, including the ages,
disability status, positions of authority of involved parties, and
other factors.
---------------------------------------------------------------------------
\659\ Id. at 651.
---------------------------------------------------------------------------
The Department appreciates commenters who stated, accurately, that
the final regulations leave recipients flexibility to address
misconduct that does not meet the Sec. 106.30 definition of sexual
harassment, through a recipient's own code of conduct that might impose
behavioral expectations on students and faculty distinct from Title
IX's non-discrimination mandate, and we have revised Sec. 106.45(b)(3)
to clarify that even when a recipient must dismiss a formal complaint
because the alleged conduct does not meet the definition of sexual
harassment in Sec. 106.30, such dismissal is only for purposes of
Title IX and does not preclude the recipient from responding to the
allegations under the recipient's own code of conduct.
Changes: We have revised the Sec. 106.30 definition of sexual
harassment by specifying that the elements in the Davis standard
(severe, pervasive, objectively offensive, and denial of equal access)
are determined under a reasonable person standard. We have revised
Sec. 106.45(b)(3)(i) to clarify that dismissal of a formal complaint
because the alleged conduct does not constitute sexual harassment as
defined in Sec. 106.30 is a dismissal for purposes of Title IX but
does not preclude the recipient from responding to the allegations
under the recipient's own code of conduct. We have also revised Sec.
106.3(a) to remove reference to whether the Department will or will not
seek money damages as part of remedial action required of a recipient
for Title IX violations.
Comments: Many commenters argued that the definition for Title IX
sexual harassment should be aligned with the definition for Title VII,
under which employers are liable for harassment that is sufficiently
severe or pervasive to alter the conditions of employment.\660\ Some
commenters argued that under the proposed rules, schools would be held
to a lower standard under Title IX to protect students (some of whom
are minors) than the standard of protection for employees under Title
VII. Some such commenters asserted that everyone
[[Page 30151]]
on campus benefits from a culture in which sexual assault and
harassment are deterred as they would be in a work environment and that
Title IX, which applies to students, must not be weaker than Title
VII.\661\ Several commenters argued that the Title VII standard
protects against visual and graphic displays, slurs, comments, and an
array of other activities that are severe or pervasive on the basis of
sex, while the NPRM would deny students the same protections by
requiring conduct be both severe and pervasive.
---------------------------------------------------------------------------
\660\ Commenters cited: Meritor Sav. Bank v. Vinson, 477 U.S.
57, 67 (1986) (holding under Title VII ``For sexual harassment to be
actionable, it must be sufficiently severe or pervasive to alter the
conditions of [the victim's] employment and create an abusive
working environment.'') (internal quotation marks and citation
omitted; brackets in original) (emphasis added); U.S. Equal Emp.
Opportunity Comm'n, Enforcement Guidance on Vicarious Employer
Liability for Unlawful Harassment by Supervisors (Jun. 18, 1999).
\661\ Commenters cited: Ellison v. Brady, 924 F.2d 872 (9th Cir.
1991) for the proposition that if an employer is aware of and allows
the continuation of sexual harassment creating a hostile work
environment, it is a violation of Title VII.
---------------------------------------------------------------------------
Other commenters argued that college students must be able to
succeed in college without being told that sexual assault and
harassment is just something they must endure so they can finally get
jobs at companies that do protect them from assault and harassment.
Some commenters further argued that colleges and universities do a
severe disservice to would-be harassers and assaulters by creating an
environment where, unlike their future work environments, harassment
and assault are tolerated. A few commenters asserted that because
students can simultaneously be both students and employees it is
necessary for the prohibited conduct to be the same under both Title
VII and Title IX.
Many commenters asserted that the hostile environment standard
expressed in the 2001 Guidance or the withdrawn 2011 Dear Colleague
Letter should be adopted in the final regulations, such that sexual
harassment is ``unwelcome conduct of a sexual nature'' and such
harassment is actionable when the conduct is ``sufficiently serious
that it interferes with or limits a student's ability to participate in
or benefit from the school's programs.'' Some commenters asserted that
the ``looser'' definition from Department guidance provides greater
protection for victims compared to the subjectivity and gray areas
created by ill-fitting terminology used in the Sec. 106.30 definition.
Many commenters argued that ``unwelcome conduct of a sexual nature'' is
a simple definition of harassment that avoids the self-doubt and
discouragement victims may feel if victims are required under the
proposed rules to wonder if the harassment they experience fits the
Sec. 106.30 definition. Some commenters argued that the Sec. 106.30
definition makes it too easy to dismiss cases as not severe enough when
any case of unwelcome sexual conduct should be clearly prohibited out
of common sense and fairness.
Some commenters asserted that the Department's guidance definition
is more in line with the reality of the type of misconduct that occurs
most often. Other commenters pointed to the ``Factors Used to Evaluate
Hostile Environment Sexual Harassment'' section of the 2001 Guidance
\662\ outlining a variety of factors used to determine if a hostile
environment has been created and argued that schools should continue to
use these factors to evaluate conduct in order to draw common sense
conclusions about what conduct is actionable.
---------------------------------------------------------------------------
\662\ Commenters cited: 2001 Guidance at 5-7 (listing factors
including: The degree to which the conduct affected one or more
students' education; the type, frequency, and duration of the
conduct; the identity of the 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).
---------------------------------------------------------------------------
Discussion: The Department acknowledges, as has the Supreme Court,
that both Title VII and Title IX prohibit sex discrimination.
Significant differences in these statutes, however, lead to different
standards for actionable harassment in the workplace, and in schools,
colleges, and universities. The Department disagrees with commenters
who asserted that an identical standard for prohibited conduct in the
workplace and in an educational environment is the appropriate outcome.
In the elementary and secondary school context, students and recipients
benefit from an approach to non-discrimination law that distinguishes
between school and workplace settings.\663\ In the higher education
context, as some commenters noted, students and faculty must be able to
discuss sexual issues even if that offends some people who hear the
discussion.\664\ Similarly, as a commenter stated, the Supreme Court
rejected the idea that ``First Amendment protections should apply with
less force on college campuses than in the community at large. Quite to
the contrary, `the vigilant protection of constitutional freedoms is
nowhere more vital than in the community of American schools.' '' \665\
Thus, even vulgar or indecent college speech is protected.\666\ The
Davis standard ensures that speech and expressive conduct is not
peremptorily chilled or restricted, yet may be punishable when the
speech becomes serious enough to lose protected status under the First
Amendment.\667\ The rationale for preventing a hostile workplace
environment free from any severe or pervasive sexual harassment that
alters conditions of employment does not raise the foregoing concerns
(i.e., allowing for the social and developmental growth of young
students learning how to interact with peers in the elementary and
secondary school context; fostering robust exchange of speech, ideas,
and beliefs in a college setting). Thus, the Department does not
believe that aligning the definitions of sexual harassment under Title
VII and Title IX furthers the purpose of Title IX or benefits students
and employees participating in education programs or activities.\668\
---------------------------------------------------------------------------
\663\ See Davis, 526 U.S. at 650 (``Courts, moreover, must bear
in mind that schools are unlike the adult workplace and that
children may regularly interact in a manner that would be
unacceptable among adults. . . . Indeed, at least early on, students
are still learning how to interact appropriately with their
peers.'').
\664\ See Snyder v. Phelps, 562 U.S. 443 (2011).
\665\ Healy v. James, 408 U.S. 169, 180 (1972) (internal
citation omitted).
\666\ Papish v. Bd. of Curators, 410 U.S. 667 (1973).
\667\ The Department notes that requiring severity,
pervasiveness, objective offensiveness, and resulting denial of
equal access to education for a victim, matches the seriousness of
conduct and consequences of other types of speech unprotected by the
First Amendment, such as fighting words, threats, and defamation.
\668\ See Azhar Majeed, The Misapplication of Peer Harassment
Law on College and University Campuses and the Loss of Student
Speech Rights, 35 Journal of Coll. & Univ. L. 385, 449 (2009)
(arguing that restrictions on workplace speech ``ultimately do not
take away from the workplace's essential functions--to achieve the
desired results, make the client happy, and get the job done'' and
free expression in the workplace ``is typically not necessary for
that purpose'' such that workplaces are often ``highly regulated
environments'' while ``[o]n the other hand, freedom of speech and
unfettered discussion are so essential to a college or university
that compromising them fundamentally alters the campus environment
to the detriment of everyone in the community'' such that free
speech and academic freedom are necessary preconditions to a
university's success.).
---------------------------------------------------------------------------
The Davis standard embodied in the second prong of the Sec. 106.30
definition differs from the third prong prohibiting sexual assault (and
in the final regulations, dating violence, domestic violence, and
stalking) because the latter conduct is not required to be evaluated
for severity, pervasiveness, offensiveness, or causing a denial of
equal access; rather, the latter conduct is assumed to deny equal
access to education and its prohibition raises no constitutional
concerns. In this manner, the final regulations obligate recipients to
respond to single instances of sexual assault and sex-related violence
more broadly than employers' response obligations under Title VII,
where even physical conduct must be severe or pervasive and alter the
conditions of
[[Page 30152]]
employment, to be actionable.\669\ The Department therefore disagrees
that the final regulations provide students less protection against
sexual assault than employees receive in a workplace, or that sexual
assault is tolerated to a greater extent under these Title IX
regulations than under Title VII.
---------------------------------------------------------------------------
\669\ E.g., Meritor, 477 U.S. at 67 (``not all workplace conduct
that may be described as harassment affects a term, condition, or
privilege of employment within the meaning of Title VII'') (internal
quotation marks and citation omitted); Brooks v. City of San Mateo,
229 F.3d 917, 927 (9th Cir. 2000) (where the plaintiff alleged a
sexual assault in the form of fondling plaintiff's breast: ``The
harassment here was an entirely isolated incident. It had no
precursors, and it was never repeated. In no sense can it be said
that the city imposed upon Brooks the onerous terms of employment
for which Title VII offers a remedy.''). Under the final
regulations, a single instance of sexual assault (which includes
fondling) requires a recipient's prompt response, including offering
the complainant supportive measures and informing the complainant of
the option of filing a formal complaint. Sec. 106.30 (defining
``sexual harassment'' to include ``sexual assault''); Sec.
106.44(a).
---------------------------------------------------------------------------
For reasons discussed above and in the ``Adoption and Adaption of
the Supreme Court Framework to Address Sexual Harassment'' section of
this preamble, the Department believes that the Davis definition in
Sec. 106.30 provides a definition for non-quid pro quo, non-Clery Act/
VAWA offense sexual harassment better aligned with the purpose of Title
IX than the definition of hostile environment harassment in the 2001
Guidance or the withdrawn 2011 Dear Colleague Letter. The Davis Court
carefully crafted its formulation of actionable sexual harassment under
Title IX for private lawsuits under Title IX, and the Department is
persuaded by the Supreme Court's reasoning that administrative
enforcement of Title IX is similarly best served by requiring a
recipient to respond to sexual harassment that is so severe, pervasive,
and objectively offensive that it effectively denies a person equal
access to education. The Department believes that rooting a definition
of sexual harassment in the Supreme Court's interpretation of Title IX
provides more clarity without unnecessarily chilling speech and
expressive conduct; these advantages are lacking in the looser
definitions used in Department guidance. The Davis definition in Sec.
106.30 utilizes the phrase unwelcome conduct on the basis of sex, which
is broader than the ``unwelcome conduct of a sexual nature'' phrase
used in Department guidance.\670\ The other elements in Sec. 106.30
(severe, pervasive, and objectively offensive) provide a standard of
evaluation more precise than the ``sufficiently serious'' description
in Department guidance, yet serve a similar purpose--ensuring that
conduct addressed as a Title IX civil rights issue represents serious
conduct unprotected by the First Amendment or principles of free speech
and academic freedom. As discussed further below, the ``effectively
denies a person equal access'' element in Sec. 106.30 has the
advantage of being adopted from the Supreme Court's interpretation of
Title IX, yet 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. The Department does not believe that recipients will err on
the side of ignoring reports of conduct that might be considered severe
and pervasive, and believes that a prohibition on any unwelcome sexual
conduct would sweep up speech and expression protected by the First
Amendment, and require schools to intervene in situations that do not
present a threat to equal educational access. Because the Sec. 106.30
definition provides precise standards for evaluating actionable
harassment focused on whether sexual harassment has deprived a person
of equal educational access, the Department believes it is unnecessary
to list the factors from the 2001 Guidance that purport to evaluate
whether a hostile environment has been created.
---------------------------------------------------------------------------
\670\ As noted by some commenters, sex-based harassment includes
unwelcome conduct of a sexual nature but also includes unwelcome
conduct devoid of sexual content that targets a particular sex. The
final regulations use the phrase ``sexual harassment'' to encompass
both unwelcome conduct of a sexual nature, and other forms of
unwelcome conduct ``on the basis of sex.'' Sec. 106.30 (defining
``sexual harassment'').
---------------------------------------------------------------------------
Changes: None.
Comments: Many commenters believed that the second prong of the
Sec. 106.30 definition means that rape and sexual assault incidents
will be scrutinized for severity and set a ``pain scale'' for sexual
assault such that only severe sexual assault will be recognized under
Title IX, or that a definition that requires a school to intervene only
if sexual violence is ``severe, pervasive, and objectively offensive''
means that someone would need to be repeatedly, violently raped before
the school would act to support the survivor.
Many commenters criticized the second prong of the Sec. 106.30
definition by asserting that, under that standard, only the most severe
harassment situations will be investigated, which will reduce and chill
reporting of sexual harassment when sexual harassment is already
underreported. Many such commenters argued that victims will be afraid
to report because the school will scrutinize whether the harassment
suffered was ``bad enough'' and that instead the Department needs to
err on the side of caution by including more, not less, conduct as
reportable harassment. Many commenters similarly argued that many
victims are already unsure of whether their experience qualifies as
serious enough to report and therefore narrowing the definition will
only discourage victims from reporting unwanted sexual conduct. Many
commenters argued that a broad definition of sexual harassment is
needed because research shows that students are unlikely to report when
their experience does not match common beliefs about what rape is, and
because even ``less severe'' forms of harassment may also lead to
negative outcomes and increase a victim's risk of further
victimization. Similarly, some commenters noted that research shows
that victims already minimize their experiences \671\ and knowing that
school administrators will be judging their report for whether it is
really serious, really pervasive, and really objectively offensive,
will result in more victims feeling dissuaded from reporting due to
uncertainty about whether their report will meet the definition or not.
---------------------------------------------------------------------------
\671\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct iv (Westat 2015) (``More than 50
percent of the victims of even the most serious incidents (e.g.,
forced penetration) say they do not report the event because they do
not consider it `serious enough.' '').
---------------------------------------------------------------------------
Several commenters argued that the Federal government should stand
by a zero-tolerance policy against sexual harassment, and that applying
a narrow definition means that some forms of harassment are acceptable,
contrary to Title IX's bar on sex discrimination. Several commenters
argued that the Sec. 106.30 definition will allow abusers to do
everything just short of the narrowed standard while keeping their
victims in a hostile environment, further silencing victims.
A few commenters stated that if a student believes conduct ``makes
me feel uncomfortable,'' that should be sufficient to require the
school to respond. At least one commenter suggested that the final
regulations provide guidance on what misconduct is actionable by using
behavioral measures such as the Sexual
[[Page 30153]]
Experiences Survey \672\ or the Sexual Experiences Questionnaire.\673\
---------------------------------------------------------------------------
\672\ Commenters cited: Mary Koss & Cheryl J. Oros, Sexual
Experiences Survey: A research instrument investigating sexual
aggression and victimization, 50 Journal of Consulting & Clinical
Psychol. 3 (1982).
\673\ Commenters cited: Louise Fitzgerald et al., Measuring
sexual harassment: Theoretical and psychometric advances, 17 Basic &
Applied Social Psychol. 4 (1995).
---------------------------------------------------------------------------
At least one commenter argued that the language of offensiveness
and severity clouds the necessary understanding of unequal power
relations and negates a culture of consent. Several commenters asserted
that a definition of sexual harassment that holds up only the dramatic
and extreme as worthy of investigation would do little to change rape
culture. Many commenters argued that while individual acts are rarely
pervasive, individual acts across a society can result in pervasiveness
throughout society so that what seem like one-off or minor incidents,
or ``normal'' sexual gestures and conventions, actually do create a
pervasive rape culture because they are rooted in patriarchy (for
example, a culture that accepts statements like ``these women come to
parties to get laid''), misunderstanding or ignorance of consent (for
example, ``she didn't say no'' despite several cues of discomfort and
unwillingness), and lack of support from authority figures (for
example, reactions from school personnel like ``boys will be boys,'' or
``this is just college campus culture''). Some commenters argued that
to achieve a drop in cases of sexual misconduct, even seemingly minor
incidents that make women feel threatened need to be taken seriously.
Similarly, a few commenters argued that the threat of potential
violence against women permeates American society and interferes with
educational equity. At least one commenter argued that young women
already are affected in many ways by the constant presence of potential
violence, such that women feel that they cannot be alone with another
student for study group purposes, with a teaching assistant to get
extra help, or with a professor during office hours. This commenter
further stated that young women already do not feel safe attending an
academic function if it means walking to her car in the dark, or
collaborating online for fear of enduring cyber harassment. A few
commenters argued that a narrow definition of harassment ignores the
scope of gender-based violence in our society and does nothing to
address patterns of harassment as opposed to just an individual case
that moves through a formal process.
A few commenters asserted by adding the ``and'' between ``severe,
pervasive and objectively offensive'' survivors will be forced to
quantify their suffering to fit into an imaginary scale determined
according to a pass or fail rubric and artificially create categories
of legitimate and illegitimate misconduct, when misconduct that is
either severe or pervasive or objectively offensive should be more than
enough to warrant stopping the misconduct. Many commenters opined that
the Sec. 106.30 definition sets an arbitrary and unnecessarily high
threshold for when conduct would even constitute harassment. Many
commenters viewed the Sec. 106.30 definition as raising the burden of
proof on victims to an unnecessary degree, making their reporting
process more strenuous and exhausting, and requiring survivors to prove
their abuse is worthy of attention. Other commenters noted that the
burden is on recipients to show the severity of the reported conduct
yet asserted that survivors will still feel pressured to present their
complaint in a certain way in order to be perceived as credible enough.
A few commenters asserted that this raises concerns especially for
people with disabilities, who may react to and communicate about trauma
differently. At least one commenter stated that to the extent that the
Sec. 106.30 definition is in response to the perception that students
and Title IX Coordinators have been pursuing a lot of formal complaints
over low-level harassment, such a perception is inaccurate.
Many commenters argued that what is severe, pervasive, and
objectively offensive leaves too much room for interpretation and will
be subject to the biases of Title IX Coordinators and other school
administrators. Another commenter expressed concern that schools would
have too much discretion to decide whether conduct was severe,
pervasive, and offensive and this will lead to arbitrary decisions to
turn away reporting parties. Several commenters asserted that
permitting administrators to judge the severity, pervasiveness, and
offensiveness of reported conduct will foster a culture of
institutional betrayal because some institutions will choose to
investigate misconduct while others will not. A few commenters asserted
that courts have found some unwanted sexual behavior (for example, a
supervisor forcibly kissing an employee) is not severe and pervasive
even though such behavior may constitute criminal assault or battery
under State laws and that a definition of sexual harassment must at
least cover misconduct that would be considered criminal.
Several commenters argued that a narrow definition would contribute
to the overall effect of the proposed rules to eliminate most sexual
harassment from coverage under Title IX, to the point of absurdity.
Several commenters asserted that research shows that narrow definitions
of sexual assault indicate that reports will decrease while underlying
violence does not decrease.\674\ At least one commenter argued that the
proposed rules seek to use a single definition of sexual harassment in
all settings, from prekindergarten all the way up to graduate school,
and this lack of a nuanced approach fails to take into account the vast
developmental differences between children, young adults, and college
and graduate students. One commenter stated that especially for
community college students, whose connections to a physical campus and
its resources can be limited, a narrower definition of sexual
harassment with ``severe and pervasive'' rather than ``severe or
pervasive'' could make it harder for reporting parties to prove their
victimization.
---------------------------------------------------------------------------
\674\ Commenters cited: Mary P. Koss, The Scope of Rape:
Incidence and Prevalence of Sexual Aggression and Victimization in a
National Sample of Higher Education Students, 55 Journal of
Consulting & Clinical Psychol. 2 (1987).
---------------------------------------------------------------------------
One commenter asserted that conduct that may not be considered
severe in an isolated instance can qualify as severe when that conduct
is pervasive, because ``severe'' and ``pervasive'' should not always
entail two separate inquiries. One commenter suggested that the second
prong of Sec. 106.30 be changed to mirror the Title IX statute, by
using the phrase ``causes a person to be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under
any education program or activity.''
Discussion: The Department appreciates the opportunity to clarify
that sexual assault (which includes rape) is referenced in the third
prong of the Sec. 106.30 definition of ``sexual harassment,'' while
the Davis standard (with the elements of severe, pervasive, and
objectively offensive) is the second prong. This means that any report
of sexual assault (including rape) is not subject to the Davis elements
of whether the incident was ``severe, pervasive, and objectively
offensive.'' Thus, contrary to commenters' concerns, the final
regulations do not require rape or sexual assault incidents to be
``scrutinized for severity,'' rated on a pain scale, or leave students
to be repeatedly or violently
[[Page 30154]]
raped before a recipient must intervene. The Department intentionally
did not want to leave students (or employees) wondering if a single act
of sexual assault might not meet the Davis standard, and therefore
included sexual assault (and, in the final regulations, dating
violence, domestic violence, and stalking) as a stand-alone type of
sexual harassment that does not need to demonstrate severity,
pervasiveness, objective offensiveness, or denial of equal access to
education, because denial of equal access is assumed. Complainants can
feel confident turning to their school, college, or university to
report and receive supportive measures in the wake of a sexual assault,
without wondering whether sexual assault is ``bad enough'' to report.
The Department understands that research shows that rape victims often
do not report due to misconceptions about what rape is (e.g., a
misconception that rape must involve violence inflicted by a stranger),
and that rape victims may minimize their own experience and not report
sexual assault, for a number of reasons.\675\ The definition of sexual
assault referenced in Sec. 106.30 broadly defines sexual assault to
include all forcible and nonforcible sex offenses described in the
FBI's Uniform Crime Reporting system. Those offenses do not require an
element of physical force or violence, but rather turn on lack of
consent of the victim. The Department believes that these definitions
form a sufficiently broad definition of sexual assault that reflects
the range of sexually violative experiences that traumatize victims and
deny equal access to education. The Department believes that by
utilizing a broad definition of sexual assault, these final regulations
will contribute to greater understanding on the part of victims and
perpetrators as to the type of conduct that constitutes sexual assault.
The FBI's Uniform Crime Reporting system similarly does not exclude
from sexual assault perpetration by a person known to the victim
(whether as an acquaintance, romantic date, or intimate partner
relationship), and the final regulations' express inclusion of dating
violence and domestic violence reinforces the reality that sex-based
violence is often perpetrated by persons known to the victim rather
than by strangers.
---------------------------------------------------------------------------
\675\ The Association of American Universities, Report on the
AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct iv
(Westat 2015) (``More than 50 percent of the victims of even the
most serious incidents (e.g., forced penetration) say they do not
report the event because they do not consider it ``serious
enough.'').
---------------------------------------------------------------------------
As to unwelcome conduct that is not quid pro quo harassment, and is
not a Clery Act/VAWA offense included in Sec. 106.30, the Davis
standard embodied in the second prong of the Sec. 106.30 definition
applies. The Department understands commenters' concerns that this
means that only ``the most severe'' harassment situations will be
investigated and that complainants will feel deterred from reporting
non-sexual assault harassment due to wondering if the harassment is
``bad enough'' to be covered under Title IX. The Department understands
that research shows that even ``less severe'' forms of sexual
harassment may cause negative outcomes for those who experience it. The
Department believes, however, that severity and pervasiveness are
needed elements to ensure that Title IX's non-discrimination mandate
does not punish verbal conduct in a manner that chills and restricts
speech and academic freedom, and that recipients are not held
responsible for controlling every stray, offensive remark that passes
between members of the recipient's community. The Department does not
believe that evaluating verbal harassment situations for severity,
pervasiveness, and objective offensiveness will chill reporting of
unwelcome conduct, because recipients retain discretion to respond to
reported situations not covered under Title IX. Thus, recipients may
encourage students (and employees) to report any unwanted conduct and
determine whether a recipient must respond under Title IX, or chooses
to respond under a non-Title IX policy.
The Department believes that the Supreme Court's Gebser and Davis
opinions provide the appropriate principles to guide the Department
with respect to appropriate interpretation and enforcement of Title IX
as a non-sex discrimination statute. Title IX is not an anti-sexual
harassment statute; Title IX prohibits sex discrimination in education
programs or activities. The Supreme Court has held that sexual
harassment may constitute sex discrimination under Title IX, but only
when the sexual harassment is so severe, pervasive, and objectively
offensive that it effectively denies a person's equal access to
education. Title IX does not represent a ``zero tolerance'' policy
banning sexual harassment as such, but does exist to provide effective
protections to individuals against discriminatory practices, within the
parameters set forth under the Title IX statute (20 U.S.C. 1681 et
seq.) and Supreme Court case law. While the Supreme Court interpreted
the level of harassment differently under Title VII than under Title
IX, neither Federal non-sex discrimination civil rights law represents
a ``zero-tolerance'' policy banning all sexual harassment.\676\ Rather,
interpretations of both Title VII and Title IX focus on sexual
harassment that constitutes sex discrimination interfering with equal
participation in a workplace or educational environment, respectively.
Contrary to the concerns of commenters, the fact that not every
instance of sexual harassment violates Title VII or Title IX does not
mean that sexual harassment not covered under one of those laws is
``acceptable'' or encourages perpetration of sexual harassment.\677\
The Department does not believe that parameters around what constitutes
actionable sexual harassment under a Federal civil rights statute
creates an environment where abusers ``do everything just short of the
narrowed standard'' to torment and silence victims. A course of
unwelcome conduct directed at a victim to keep the victim fearful or
silenced likely crosses over into ``severe, pervasive, and objectively
offensive'' conduct actionable under Title IX. Whether or not
misconduct is actionable under Title IX, it may be actionable under
another part of a recipient's code of conduct (e.g., anti-bullying).
These final regulations only prescribe a recipient's mandatory response
to conduct that
[[Page 30155]]
does meet the Sec. 106.30 definition of sexual harassment; these final
regulations do not preclude a recipient from addressing other types of
misconduct.
---------------------------------------------------------------------------
\676\ E.g., Chesier v. On Q Financial Inc., 382 F. Supp. 3d 918,
925-26 (D. Ariz. 2019) (reviewing Title VII cases involving single
instances of sexual harassment determined not to be sufficiently
severe enough to affect a term of employment under Title VII) (``not
all workplace conduct that may be described as `harassment' affects
a term, condition, or privilege of employment within the meaning of
Title VII. . . . For sexual harassment to be actionable, it must be
sufficiently severe or pervasive to alter the conditions of [the
victim's] employment and create an abusive working environment.'')
(citing to Meritor, 477 U.S. at 67) (emphasis and brackets in
original); Julie Davies, Assessing Institutional Responsibility for
Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 407
(2002) (``Although the Court adopted different standards for
institutional liability under Titles VII and IX, several themes
serve as leitmotifs, running through the cases regardless of the
technical differences. Neither Title VII nor Title IX is construed
as a federal civility statute; the Court does not want entities to
be obliged to litigate cases where plaintiffs have been subjected to
`minor' annoyances and insults.'') (internal citation omitted).
\677\ See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 927
(9th Cir. 2000) (``Our holding in no way condones [the supervisor's]
actions. Quite the opposite: The conduct of which [the plaintiff]
complains was highly reprehensible. But, while [the supervisor]
clearly harassed [the plaintiff] as she tried to do her job, not all
workplace conduct that may be described as harassment affects a
term, condition, or privilege of employment within the meaning of
Title VII. The harassment here was an entirely isolated incident. It
had no precursors, and it was never repeated. In no sense can it be
said that the city imposed upon [the plaintiff] the onerous terms of
employment for which Title VII offers a remedy.'') (internal
quotation marks and citation omitted).
---------------------------------------------------------------------------
For the same reasons that Title IX does not stand as a zero-
tolerance ban on all sexual harassment, Title IX does not stand as a
Federal civil rights law to prevent all conduct that ``makes me feel
uncomfortable.'' The Supreme Court noted in Davis that school children
regularly engage in ``insults, banter, teasing, shoving, pushing, and
gender-specific conduct that is upsetting to the students subjected to
it'' yet a school is liable under Title IX for responding to such
behavior only when the conduct is ``so severe, pervasive, and
objectively offensive that it denies its victims the equal access to
education that Title IX is designed to protect.'' \678\ Though not
specifically in the Title IX context, the Supreme Court has noted that
speech and expression do not lose First Amendment protections on
college campuses, and in fact, colleges and universities represent
environments where it is especially important to encourage free
exchange of ideas, viewpoints, opinions, and beliefs.\679\ The
Department believes that the Davis formulation, applied to unwelcome
conduct that is not quid pro quo harassment and not a Clery Act/VAWA
offense included in Sec. 106.30, appropriately safeguards free speech
and academic freedom,\680\ while requiring recipients to respond even
to verbal conduct so serious that it loses First Amendment protection
and denies equal access to the recipient's educational benefits.
---------------------------------------------------------------------------
\678\ Davis, 526 U.S. at 650-51; see also Azhar Majeed, The
Misapplication of Peer Harassment Law on College and University
Campuses and the Loss of Student Speech Rights, 35 Journal of Coll.
& Univ. L. 385, 399 (2009) (``misapplication of harassment law . . .
has contributed to a sense among students that there is a general
`right' not to be offended'--a false notion that ill serves students
as they transition from the relatively insulated college or
university setting to the larger society. Colleges and universities
too often address the problems of sexual and racial harassment by
targeting any expression which may be perceived by another as
offensive or undesirable.'') (citing Alan Charles Kors & Harvey A.
Silverglate, The Shadow University: The Betrayal of Liberty on
America's Campuses (Free Press 1998) (``At almost every college and
university, students deemed members of `historically oppressed
groups' . . . are informed during orientations that their campuses
are teeming with illegal or intolerable violations of their `right'
not to be offended.'')).
\679\ Healy v. James, 408 U.S. 169, 180-81 (1972) (``At the
outset we note that state colleges and universities are not enclaves
immune from the sweep of the First Amendment. `It can hardly be
argued that either students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate.'
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506
(1969). Of course, as Mr. Justice Fortas made clear in Tinker, First
Amendment rights must always be applied `in light of the special
characteristics of the . . . environment in the particular case.'
Ibid. And, where state-operated educational institutions are
involved, this Court has long recognized `the need for affirming the
comprehensive authority of the States and of school officials,
consistent with fundamental constitutional safeguards, to prescribe
and control conduct in the schools.' Id., at 507. Yet, the
precedents of this Court leave no room for the view that, because of
the acknowledged need for order, First Amendment protections should
apply with less force on college campuses than in the community at
large. Quite to the contrary, `(t)he vigilant protection of
constitutional freedoms is nowhere more vital than in the community
of American schools.' The college classroom with its surrounding
environs is peculiarly the `marketplace of ideas,' and we break no
new constitutional ground in reaffirming this Nation's dedication to
safeguarding academic freedom.'') (internal citations omitted).
\680\ As noted in the ``Role of Due Process in the Grievance
Process'' section of this preamble, the Department is aware that
Title IX applies to all recipients operating education programs or
activities regardless of a recipient's status as a public
institution with obligations to students and employees under the
U.S. Constitution or as a private institution not subject to the
U.S. Constitution. However, the principles of free speech, and of
academic freedom, are crucial in the context of both public and
private institutions. E.g., Kelly Sarabynal, 39 Journal of L. &
Educ. 145, 145, 181-82 (2010) (noting that ``The vast majority of
[public and private] universities in the United States promote
themselves as institutions of free speech and thought, construing
censorship as antipathetic to their search for knowledge'') and
observing that where public universities restrict speech (for
example, through anti-harassment or anti-hate speech codes) the
First Amendment ``solves the conflict between a university's
policies promising free speech and its speech-restrictive policies
by rendering the speech-restrictive policies unconstitutional'' and
arguing that as to private universities, First Amendment principles
embodied in a private university's policies should be enforced
contractually against the university so that private liberal arts
and research universities are held ``to their official promises of
free speech'' which leaves private institutions control over
changing their official promises of free speech if they so choose,
for instance if the private institution expects students to ``abide
by the dictates of the university's ideology''). The Department is
obligated to interpret and enforce Federal laws consistent with the
U.S. Constitution. E.g., Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 574-575 (1988)
(refusing to give deference to an agency's interpretation of a
statute where the interpretation raised First Amendment concerns);
2001 Guidance at 22. While the Department has recognized the
importance of responding to sexual harassment under Title IX while
protecting free speech and academic freedom since 2001, as explained
in the ``Adoption and Adaption of the Supreme Court Framework to
Address Sexual Harassment'' section of this preamble, protection of
free speech and academic freedom was weakened by the Department's
use of wording that differed from the Davis definition of what
constitutes actionable sexual harassment under Title IX and for
reasons discussed in this section of the preamble, these final
regulations return to the Davis definition verbatim, while also
protecting against even single instances of quid pro quo harassment
and Clery/VAWA offenses, which are not entitled to First Amendment
protection.
---------------------------------------------------------------------------
While the Department appreciates a commenter's suggestion to
describe prohibited conduct by references to terms used in the Sexual
Experiences Survey or the Sexual Experiences Questionnaire,\681\ for
the above reasons the Department believes that the better formulation
of prohibited conduct under Title IX is captured in Sec. 106.30,
prohibiting conduct on the basis of sex that is either quid pro quo
harassment, unwelcome conduct so severe, pervasive, and objectively
offensive that it effectively denies a person equal access to
education, or sexual assault, dating violence, domestic violence, or
stalking under the Clery Act and VAWA.
---------------------------------------------------------------------------
\681\ Mary Koss & Cheryl J. Oros, Sexual Experiences Survey: A
research instrument investigating sexual aggression and
victimization, 50 Journal of Consulting & Clinical Psychol. 3 (1982)
(discussing survey questions designed to assess experiences with
sexual harassment consisting of a series of questions about whether
a respondent has encountered specific examples of sexual behavior);
Louise Fitzgerald et al., Measuring sexual harassment: Theoretical
and psychometric advances, 17 Basic & Applied Social Psychol. 4
(1995).
---------------------------------------------------------------------------
The Department understands commenters' concerns that the Sec.
106.30 definition of sexual harassment, and the Davis standard in the
second prong particularly, does not sufficiently acknowledge unequal
power relations and societal factors that contribute to perpetuation of
violence against women, and commenters' arguments that in order to
reduce the prevalence of sexual misconduct across society even minor-
seeming incidents should be taken seriously. The Department believes
that the Supreme Court's recognition of sexual harassment as a form of
sex discrimination \682\ represents an important acknowledgement that
sexual harassment often is not a matter of private, individualized
misbehavior but is representative of sex-based notions and attitudes
that contribute to systemic sex discrimination. However, the Department
heeds the Supreme Court's interpretation of sexual harassment as sex
discrimination under Title IX, premised on conditions that hold
recipients liable for how to respond to sexual harassment. The Sec.
106.30 definition of sexual harassment adopts the Supreme Court's Davis
definition, adapted under the Department's administrative enforcement
authority to provide broader protections for students (i.e., by
ensuring that quid pro quo harassment and Clery Act/VAWA
[[Page 30156]]
offenses included in Sec. 106.30 count as sexual harassment without
meeting the Davis standard). Similarly, the Department believes that by
clearly defining sexual harassment to include sexual assault, dating
violence, domestic violence, and stalking, affected parties will
understand that no instance of sexual violence is tolerated under Title
IX and may reduce the fear commenters described being felt by some
young women participating in educational activities that involve
proximity with fellow students or professors.
---------------------------------------------------------------------------
\682\ E.g., Meritor, 477 U.S. at 64 (``Without question, when a
supervisor sexually harasses a subordinate because of the
subordinate's sex, that supervisor `discriminate[s]' on the basis of
sex.''); Gebser, 524 U.S. at 283 (reference in Franklin to Meritor
``was made with regard to the general proposition that sexual
harassment can constitute discrimination on the basis of sex under
Title IX, . . . an issue not in dispute here.'') (internal citations
omitted).
---------------------------------------------------------------------------
The Department does not believe that the Sec. 106.30 definition
creates categories of ``legitimate'' sexual misconduct or makes victims
prove that their abuse is worthy of attention. The three-pronged
definition of sexual harassment in Sec. 106.30 captures physical and
verbal conduct serious enough to warrant the label ``abuse,'' and
thereby assures complainants that sex-based abuse is worthy of
attention and intervention by a complainant's school, college, or
university. The Department appreciates the opportunity to clarify that
the burden of describing or proving elements of the Sec. 106.30
definition does not fall on complainants; there is no magic language
needed to ``present'' a report or formal complaint in a particular way
to trigger a recipient's response obligations. Rather, the burden is on
recipients to evaluate reports of sexual harassment in a common sense
manner with respect to whether the facts of an incident constitute one
(or more) of the three types of misconduct described in Sec. 106.30.
This includes taking into account a complainant's age, disability
status, and other factors that may affect how an individual complainant
describes or communicates about a situation involving unwelcome sex-
based conduct.
The Department disagrees with commenters' contention that Sec.
106.30 gives school officials too much discretion to decide whether
conduct was severe, pervasive, and objectively offensive or that these
elements will lead to arbitrary decisions to turn away reporting
parties based on biases of school administrators, fostering a culture
of institutional betrayal, or that the Sec. 106.30 definition
eliminates ``most'' sexual harassment from coverage under Title IX, or
that this definition is problematic because not all unwanted sexual
behavior is severe and pervasive. Elements of severity, pervasiveness,
and objective offensiveness must be evaluated in light of the known
circumstances and depend on the facts of each situation, but must be
determined from the perspective of a reasonable person standing in the
shoes of the complainant. The final regulations revise the second prong
of the Sec. 106.30 definition to state that the Davis elements must be
determined under a reasonable person standard. Title IX Coordinators
are specifically required under the final regulations to serve
impartially, without bias for or against complainants or respondents
generally or for or against an individual complainant or
respondent.\683\ A recipient that responds to a report of sexual
harassment in a manner that is clearly unreasonable in light of the
known circumstances violates the final regulations,\684\ incentivizing
Title IX Coordinators and other recipient officials to carefully,
thoughtfully, and reasonably evaluate each complainant's report or
formal complaint.
---------------------------------------------------------------------------
\683\ Section 106.45(b)(1)(iii).
\684\ Section 106.44(a).
---------------------------------------------------------------------------
The Department appreciates commenters' contention that recipients'
Title IX offices have not been processing great quantities of ``low-
level'' harassment cases; however, if that is accurate, then the Sec.
106.30 definition simply will continue to ensure that sexual harassment
is adequately addressed under Title IX, for the benefit of victims of
sexual harassment. Far from excluding ``most'' sexual harassment from
Title IX coverage, the definition of sexual harassment in Sec. 106.30
requires recipients to respond to three separate broadly-defined
categories of sexual harassment. While not all unwanted sexual conduct
is both severe and pervasive, as explained above, the Supreme Court has
long acknowledged that not all misconduct amounts to sex discrimination
prohibited by Federal civil rights laws like Title VII and Title IX,
even where the misconduct amounts to a criminal violation under State
law.\685\ Where a Federal civil rights law does not find sexual
harassment to also constitute prohibited sex discrimination, this does
not mean the conduct is acceptable or does not constitute a different
violation, such as assault or battery, under non-sex discrimination
laws. The Department does not believe that the Sec. 106.30 definition
of sexual assault is a ``narrow'' definition, as it includes all
forcible and nonforcible sex offenses described in the FBI's Uniform
Crime Reporting system and thus this definition will not discourage
reporting of sexual assault.
---------------------------------------------------------------------------
\685\ See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 924,
927 (9th Cir. 2000) (Plaintiff alleged a workplace sexual assault in
the form of a supervisor fondling plaintiff's breast, which is
``egregious'' and the perpetrator ``spent time in jail'' for the
assault, yet the Court held that ``[t]he harassment here was an
entirely isolated incident. It had no precursors, and it was never
repeated. In no sense can it be said that the city imposed upon [the
plaintiff] the onerous terms of employment for which Title VII
offers a remedy.''); see also Davis, 526 U.S. at 634 (noting that
the peer harasser in that case was charged with, and pled guilty to,
sexual battery, yet still evaluating the harassment by whether it
amounted to severe, pervasive, objectively offensive conduct).
---------------------------------------------------------------------------
The Department disagrees that it is inappropriate to use a uniform
definition of sexual harassment in elementary and secondary school and
postsecondary institution contexts. No person, of any age or
educational level, should endure quid pro quo harassment, severe,
pervasive, objectively offensive unwelcome conduct, or a Clery Act/VAWA
offense included in Sec. 106.30, without recourse from their school,
college, or university. The Sec. 106.30 definition applies equally in
every educational setting, yet the definition may be applied in a
common sense manner that takes into account the ages and developmental
abilities of the involved parties.
The Department disagrees with a commenter's contention that
community college students will find it more difficult to report sexual
harassment because such students have less of a connection to a
physical campus. Under Sec. 106.8 of the final regulations, contact
information for the Title IX Coordinator, including an office address,
telephone number, and email address, must be posted on the recipient's
website, and that provision expressly states that any person may report
sexual harassment by using the Title IX Coordinator's contact
information. We believe this will simplify the process for community
college students, as well as other complainants, to make a report to
the recipient's Title IX Coordinator.
The Department disagrees with a commenter's assertion that
pervasiveness necessarily transforms harassment into also being severe,
because these elements are separate inquiries; however, the Department
reiterates that a course of conduct reported as sexual harassment must
be evaluated in the context of the particular factual circumstances,
under a reasonable person standard, when determining whether the
conduct is both severe and pervasive. The Department appreciates a
commenter's suggestion to revise the second prong of the Sec. 106.30
definition by stating that severe, pervasive, objectively offensive
conduct counts when it ``causes a person to be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity'' instead of
``effectively denies a
[[Page 30157]]
person equal access to the recipient's education program or activity''
to more closely mirror the language in the Title IX statute. However,
as discussed above, the Department notes that when considering sexual
harassment as a form of sex discrimination under Title IX, the Supreme
Court in Davis repeatedly used the ``denial of equal access'' phrase to
describe when sexual harassment is actionable, implying that this is
the equivalent of a violation of Title IX's prohibition on exclusion
from participation, denial of benefits, and/or subjection to
discrimination.\686\ We believe this element as articulated by the
Davis Court thus represents the full scope and intent of the Title IX
statute.
---------------------------------------------------------------------------
\686\ Davis, 526 U.S. at 650 (``The statute's other
prohibitions, moreover, help give content to the term
`discrimination' in this context. Students are not only protected
from discrimination, but also specifically shielded from being
`excluded from participation in' or `denied the benefits of' any
`education program or activity receiving Federal financial
assistance.' 20 U.S.C. 1681(a). The statute makes clear that,
whatever else it prohibits, students must not be denied access to
educational benefits and opportunities on the basis of gender. We
thus conclude that funding recipients are properly held liable in
damages only where they are deliberately indifferent to sexual
harassment, of which they have actual knowledge, that is so severe,
pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits
provided by the school.''); id. at 644-45 (holding that a recipient
is liable where its ``deliberate indifference `subjects' its
students to harassment--``[t]hat is, the deliberate indifference
must, at a minimum, `cause [students] to undergo' harassment or
`make them liable or vulnerable' to it.''); id. at 650-652
(expressing the denial of access element in different ways as
``depriv[ing] the victims of access to the educational opportunities
or benefits provided by the school,'' ``effectively den[ying] equal
access to an institution's resources and opportunities,'' and
``den[ying] its victims the equal access to education that Title IX
is designed to protect.'').
---------------------------------------------------------------------------
Changes: We have revised the Sec. 106.30 definition of sexual
harassment by specifying that the elements in the Davis definition of
sexual harassment (severe, pervasive, objectively offensive, and denial
of equal access) are determined under a reasonable person standard.
Comments: Several commenters described State laws under which a
recipient is required to respond to a broader range of misconduct than
what meets the Davis standard, and stated that the NPRM places
recipients in a ``Catch-22'' by requiring recipients to dismiss cases
that do not meet the narrower Sec. 106.30 definition; one such
commenter urged the Department to either broaden the definition of
sexual harassment or remove the mandatory dismissal provision in Sec.
106.45(b)(3). A few commenters requested clarification on whether a
school may choose to include a wider range of misconduct than conduct
that meets this definition. Many commenters urged the Department not to
prevent recipients from addressing misconduct that does not meet the
Sec. 106.30 definition because State laws and institutional policies
often require recipients to respond. A few commenters asserted that
even if the final regulations allow recipients to choose to address
misconduct that does not meet the Sec. 106.30 definition, this creates
two different processes and standards (one for ``Title IX sexual
harassment'' and one for other sexual misconduct) which will lead to
confusion and inefficiency. At least one commenter stated that the
Title IX equitable process should be used for all sexual misconduct
violations such that the final regulations should allow recipients to
use that process for Title IX, VAWA, Clery Act, and State law sex and
gender offenses under a single campus policy and process. At least one
commenter recommended that the Department clarify that the final
regulations establish minimum Federal standards for responses to sex
discrimination and that recipients retain discretion to exceed those
minimum standards.
Discussion: The Department is aware that various State laws define
actionable sexual harassment differently than the Sec. 106.30
definition, and that the NPRM's mandatory dismissal provision created
confusion among commenters as to whether the NPRM purported to forbid a
recipient from addressing conduct that does not constitute sexual
harassment under Sec. 106.30. In response to commenters' concerns, the
final regulations revise Sec. 106.45(b)(3)(i) \687\ to clearly state
that dismissal for Title IX purposes does not preclude action under
another provision of the recipient's code of conduct. Thus, if a
recipient is required under State law or the recipient's own policies
to investigate sexual or other misconduct that does not meet the Sec.
106.30 definition, the final regulations clarify that a recipient may
do so. Similarly, if a recipient wishes to use a grievance process that
complies with Sec. 106.45 to resolve allegations of misconduct that do
not constitute sexual harassment under Sec. 106.30, nothing in the
final regulations precludes a recipient from doing so. Alternatively, a
recipient may respond to non-Title IX misconduct under disciplinary
procedures that do not comply with Sec. 106.45. The final regulations
leave recipients flexibility in this regard, and prescribe a particular
grievance process only where allegations concern sexual harassment
covered by Title IX. The Department does not agree that this results in
inefficiency or confusion, because so long as a recipient complies with
these final regulations for Title IX purposes, a recipient retains
discretion as to how to address non-Title IX misconduct. Because the
final regulations extend the Sec. 106.30 definition to include all
four Clery Act/VAWA offenses (sexual assault, dating violence, domestic
violence, stalking), the Title IX grievance process will apply to
formal complaints alleging the Clery Act/VAWA offenses included in
Sec. 106.30, and recipients may choose to use the same process for
State-law offenses, too.
---------------------------------------------------------------------------
\687\ Section 106.45(b)(3)(i) (``The recipient must investigate
the allegations in a formal complaint. If the conduct alleged by the
complainant would not constitute sexual harassment as defined in
Sec. 106.30 even if proved, did not occur in the recipient's
education program or activity, or did not occur against a person in
the United States, then the recipient must dismiss the formal
complaint with regard to that conduct for purposes of sexual
harassment under title IX or this part; such a dismissal does not
preclude action under another provision of the recipient's code of
conduct.'') (emphasis added).
---------------------------------------------------------------------------
The Department appreciates a commenter's suggestion to clarify (and
does so here) that the final regulations establish Federal standards
for responding to sex discrimination in the form of sexual harassment,
and recipients retain discretion to respond to more conduct than what
these final regulations require.
Changes: The final regulations revise Sec. 106.45(b)(3)(i) to
clearly state that dismissal for Title IX purposes does not preclude
action under another provision of the recipient's code of conduct.
Comments: Many commenters opposed the second prong of the Sec.
106.30 sexual harassment definition by giving examples of harassing
conduct that might not be covered. One such commenter stated that the
``severe and pervasive'' standard will conflict with elementary and
secondary school anti-bullying policies, asserting that, for example, a
classmate repeatedly taunting a girl about her breasts may not be
considered both severe and pervasive enough to fall under the proposed
rules, whereas a similarly-described scenario was clearly covered under
the 2001 Guidance (at p. 6).
A few commenters raised examples such as snapping a girl's bra,
casual jokes and comments of a sexual nature, or unwelcome emails with
sexual content, which commenters asserted can be ignored under Sec.
106.30 because the unwanted behavior might be considered not severe
even though it is pervasive, leaving victims in a state of anxiety and
negatively impacting victims' ability to access education.
One commenter asserted that under Sec. 106.30, a professor
whispering sexual
[[Page 30158]]
comments to a female student would be ``severe'' but since it happened
once it would not be ``pervasive'' so even if the female student felt
alarmed and uncomfortable and dropped that class, the recipient would
not be obligated to respond. The same commenter asserted that the
following example would not be sexual harassment under Sec. 106.30
because the conduct would be pervasive but not severe: A graduate
assistant emails an undergraduate student multiple times per week for
two months, commenting each time in detail about what the student wears
and how she looks, making the student feel uncomfortable about the
unwanted attention to the point where she drops the class.
One commenter described attending a holiday party for graduate
students where a fellow student wore a shirt with the words ``I'm just
here for the gang bang'' and while the offensive shirt did not prevent
the commenter from continuing an education it made the commenter feel
unsafe and showed how deep-seated toxic rape culture is on college
campuses; the commenter contended that narrowing the definition of
harassment will only perpetuate this culture.
One commenter recounted the experience of a friend who was drugged
at a dorm party; the commenter contended that because the boys who
drugged the girl did not also rape her, the situation would not even be
investigated under the new Title IX rules even though an incident of
boys drugging a girl creates a dangerous, ongoing threat on campus.
One commenter urged the Department to authorize recipients to
create lists of situations that constitute per se harassment, for
example where a recipient receives multiple reports of students having
their towels tugged away while walking to the dorm bathrooms, or
reports of students lifting the skirts or dresses of other students.
The commenter asserted that creating lists of such per se violations
will create more consistent application of the harassment definition
within recipient communities and address problematic situations that
occur frequently at some institutions.
Discussion: In response to commenters who presented examples of
misconduct that they believe may not be covered under the Davis
standard in the second prong of the Sec. 106.30 definition, the
Department reiterates that whether or not an incident of unwanted sex-
based conduct meets the Davis elements is a fact-based inquiry,
dependent on the circumstances of the particular incident. However, the
Department does not agree with some commenters who speculated that
certain examples would not meet the Davis standard, and encourages
recipients to use common sense in evaluating conduct under a reasonable
person standard, by taking into account the ages and abilities of the
individuals involved in an incident or course of conduct.
Furthermore, the Department reiterates that the Davis standard is
only one of three categories of conduct on the basis of sex prohibited
under Sec. 106.30, and incidents that do not meet the Davis standard
may therefore still constitute sexual harassment under Sec. 106.30
(for example, as fondling, stalking, or quid pro quo harassment). The
Department also reiterates that inappropriate or illegal behavior may
be addressed by a recipient even if the conduct clearly does not meet
the Davis standard or otherwise constitute sexual harassment under
Sec. 106.30, either under a recipient's own code of conduct or under
criminal laws in a recipient's jurisdiction (e.g., with respect to a
commenter's example of drugging at a dorm party).
The Department understands commenters' concerns that anything less
than the broadest possible definition of actionable harassment may
result in some situations that make a person feel unsafe or
uncomfortable without legal recourse under Title IX; however, for the
reasons described above, the Department chooses to adopt the Supreme
Court's approach to interpreting Title IX, which requires schools to
respond to sexual harassment that jeopardizes the equal access to
education promised by Title IX. Whether or not a college student
wearing a t-shirt with an offensive slogan constitutes sexual
harassment under Title IX, other students negatively impacted by the t-
shirt are free to opine that such expression is inappropriate, and
recipients remain free to utilize institutional speech to promote their
values about respectful expressive activity.
The Department notes that nothing in the final regulations prevents
a recipient from publishing a list of situations that a recipient has
found to meet the Sec. 106.30 definition of sexual harassment, to
advise potential victims and potential perpetrators that particular
conduct has been found to violate Title IX, or to create a similar list
of situations that a recipient finds to be in violation of the
recipient's own code of conduct even if the conduct does not violate
Title IX.
Changes: None.
Comments: At least one commenter urged the Department to expressly
include verbal sexual coercion in the Sec. 106.30 definition of sexual
harassment, noting that studies indicate that college women are likely
to experience verbal sexual coercion as a tactic of sexual assault on a
continuum ranging from non-forceful verbal tactics to incapacitation to
physical force, and that studies indicate that verbal sexual coercion
is the most common sexual assault tactic.\688\
---------------------------------------------------------------------------
\688\ Commenters cited: Brandie Pugh & Patricia Becker,
Exploring Definitions and Prevalence of Verbal Sexual Coercion and
its Relationship to Consent to Unwanted Sex: Implications for
Affirmative Consent Standards on College Campuses, 8 Behavioral Sci.
8 (2018).
---------------------------------------------------------------------------
One commenter insisted that the second prong of the Sec. 106.30
definition of sexual harassment is too broad and contended that the
Department should adopt the minority view in the Davis case, or
alternatively change the second prong to ``unwelcome physical conduct
on the basis of sex that is so severe, and objectively offensive''
(eliminating the word pervasive because a single act of a physical
nature could trigger the statute while excluding purely verbal conduct
from the definition).
At least one commenter suggested that the second prong should be
subject to a general requirement of objective reasonableness; the
commenter asserted that objective offensiveness is no substitute for
requiring all the elements of the hostile environment claim be not only
subjectively valid but also objectively reasonable. The commenter
asserted that the stakes are high: Many complaints come to Title IX
offices from students who sincerely believe that they have experienced
sexual harassment, meeting any subjective test, but which cannot
survive reasonableness scrutiny and thus objective reasonableness under
all the circumstances is a necessary guard against arbitrary
enforcement.
At least one commenter stated that subjective factors must be taken
into consideration to decide if conduct is severe and pervasive because
how severe the experience is to a particular victim depends on factors
such as the status of the offender, the power the offender holds over
the victim's life, the victim's prior history of trauma, or whether the
victim has a support system for dealing with the trauma.
Discussion: The Department appreciates commenters' concerns that
verbal sexual coercion is the most common sexual assault tactic, but
declines to list verbal coercion as an element of sexual harassment or
sexual assault. As explained in the ``Consent'' subsection of the
``Section 106.30 Definitions'' section of this preamble, the Department
leaves flexibility to
[[Page 30159]]
recipients to define consent as well as terms commonly used to describe
the absence or negation of consent (e.g., incapacity, coercion, threat
of force), in recognition that many recipients are under State laws
requiring particular definitions of consent, and that other recipients
desire flexibility to use definitions of consent and related terms that
reflect the unique values of a recipient's educational community.
The Department disagrees with commenters who argued that the Davis
standard is too broad and that the Department should adopt the
dissenting viewpoint from the Davis decision. For reasons explained in
the ``Adoption and Adaption of the Supreme Court Framework to Address
Sexual Harassment'' section of this preamble, the Department believes
that the Supreme Court appropriately described the conditions under
which sexual harassment constitutes sex discrimination under Title IX,
and the Department's goal through these final regulations is to impose
requirements for recipients to provide meaningful, supportive responses
fair to all parties when allegations of sexual harassment are brought
to a recipient's attention. Similarly, the Department declines a
commenter's recommendation to restrict the Davis standard solely to
``physical'' conduct because the Supreme Court has acknowledged that
not all speech is protected by the First Amendment, and that verbal
harassment can constitute sex discrimination requiring a response when
it is so severe, pervasive, and objectively offensive that it denies a
person equal access to education.
The Department is persuaded by commenters' recommendation that the
second prong of the Sec. 106.30 definition must be applied under a
general reasonableness standard. We have revised Sec. 106.30 to state
that sexual harassment includes ``unwelcome conduct'' on the basis of
sex ``determined by a reasonable person'' to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal
educational access. We interpret the Davis standard formulated in Sec.
106.30 as subjective with respect to the unwelcomeness of the conduct
(i.e., whether the complainant viewed the conduct as unwelcome), but as
to elements of severity, pervasiveness, objective offensiveness, and
denial of equal access, determinations are made by a reasonable person
in the shoes of the complainant.\689\ The Department believes this
approach appropriately safeguards against arbitrary application, while
taking into account the unique circumstances of each sexual harassment
allegation.
---------------------------------------------------------------------------
\689\ See Davis, 526 U.S. at 653-54 (applying the severe,
pervasive, objectively offensive, denial of access standard to the
facts at issue under an objective) (``Petitioner alleges that her
daughter was the victim of repeated acts of sexual harassment by
G.F. over a 5-month period, and there are allegations in support of
the conclusion that G.F.'s misconduct was severe, pervasive, and
objectively offensive. The harassment was not only verbal; it
included numerous acts of objectively offensive touching, and,
indeed, G.F. ultimately pleaded guilty to criminal sexual
misconduct. . . . Further, petitioner contends that the harassment
had a concrete, negative effect on her daughter's ability to receive
an education.'').
---------------------------------------------------------------------------
Changes: We have revised the Sec. 106.30 definition of sexual
harassment by specifying that the elements in the Davis standard
(severe, pervasive, objectively offensive, and denial of equal access)
are determined under a reasonable person standard.
Comments: Many commenters opposed the Sec. 106.30 definition on
the ground that a narrow definition fails to stop harassing behavior
before it escalates into more serious violations. Some commenters urged
the Department to consider statistics regarding violent offenders who
could be identified by examining their history of harassment that
escalated over time into violence. Other commenters emphasized that
sexual harassment is often a first stop on a continuum of violence and
schools have a unique opportunity and duty to intervene early. At least
one commenter asserted that the definition should be more in line with
academic definitions of sexual harassment.\690\ At least one commenter
analogized to laws against drunk driving, asserting that such laws do
not distinguish between instances where a driver is marginally above
the legal intoxication limit from those where a driver is significantly
above the limit; the commenter argued that just as all driving while
intoxicated situations are dangerous, all harassment regardless of
severity is dangerous. Another commenter likened the Sec. 106.30
approach to choosing not to address a rodent infestation until the
problem escalates and becomes costlier to redress.
---------------------------------------------------------------------------
\690\ Commenters cited: Handbook for Achieving Gender Equity
Through Education 215-229 (Susan G. Klein et al. eds., 2d ed. 2007).
---------------------------------------------------------------------------
A few commenters argued that waiting until sexually predatory
behavior becomes extremely serious risks women's lives, pointing to
instances where women reporting domestic violence have been turned away
by police due to individual incidents seeming ``non-severe'' and then
been killed by their violent partners.\691\
---------------------------------------------------------------------------
\691\ Commenter cited: Elizabeth Bruenig, What Do We Owe Her
Now?, The Washington Post (Sept. 21, 2018); Lindsay Gibbs, College
track star warned police about her ex-boyfriend 6 times in the 10
days before he killed her, ThinkProgress (Dec. 18, 2018), https://thinkprogress.org/mccluskey-university-of-utah-warned-police-about-ex-boyfriend-6-times-bc08aed0fad5/; Sirin Kale, Teen Killed By
Abusive Ex Even After Reporting Him to Police Five Times, Vice (Jan.
15, 2019), https://broadly.vice.com/en_us/article/59vnbx/teen-killed-by-abusive-ex-even-after-reporting-him-to-police-five-times.
---------------------------------------------------------------------------
Many commenters stated that a victim turned away while trying to
report a less severe instance of harassment will be unlikely to try and
report a second time when the harassing conduct has escalated into a
more severe situation.
Discussion: The Department understands commenters' concerns that
sometimes harassing behavior escalates into more serious harassment, up
to and even including violence and homicide, and that commenters
therefore advocate using a very broad definition of sexual harassment
that captures even seemingly ``low level'' harassment. The Department
is persuaded that every instance of dating violence, domestic violence,
and stalking should be considered sexual harassment under Title IX and
has therefore revised Sec. 106.30 to include these offenses in
addition to sexual assault. However, for the reasons described above,
the Department chooses to follow the Supreme Court's framework
recognizing that Title IX is a non-sex discrimination statute and not a
prohibition on all harassing conduct, and declines to define actionable
sexual harassment as broadly as some academic researchers define
harassment. The Department further believes that Sec. 106.30
appropriately recognizes certain forms of harassment as per se sex
discrimination (i.e., quid pro quo and Clery Act/VAWA offenses included
in Sec. 106.30), while adopting the Davis definition for other types
of harassment such that free speech and academic freedom \692\ are not
chilled or curtailed
[[Page 30160]]
by an overly broad definition of sexual harassment.\693\ The Department
believes that as a whole, the Sec. 106.30 definition appropriately
requires recipient intervention into situations that form a course of
escalating conduct, without requiring recipients to intervene in
situations that might--but have not yet--risen to a serious level. By
adding dating violence, domestic violence, and stalking to the third
prong of the Sec. 106.30 definition, it is even more likely that
conduct with potential to escalate into violence or even homicide will
be reported and addressed before such escalation occurs.
---------------------------------------------------------------------------
\692\ The Supreme Court has recognized academic freedom as
protected under the First Amendment. See, e.g., Keyishian v. Bd. of
Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (``Our
Nation is deeply committed to safeguarding academic freedom, which
is of transcendent value to all of us and not merely to the teachers
concerned. That freedom is therefore a special concern of the First
Amendment, which does not tolerate laws that cast a pall of
orthodoxy over the classroom. The vigilant protection of
constitutional freedoms is nowhere more vital than in the community
of American schools. . . . The classroom is peculiarly the
marketplace of ideas. The Nation's future depends upon leaders
trained through wide exposure to that robust exchange of ideas which
discovers truth out of a multitude of tongues, (rather) than through
any kind of authoritative selection.'') (internal quotation marks
and citations omitted).
\693\ Eugene Volokh, How Harassment Law Restricts Free Speech,
47 Rutgers L. Rev. 563 (1995) (``[T]he vagueness of harassment law
means the law actually deters much more speech than might ultimately
prove actionable.''); Kingsley R. Browne, Title VII as Censorship:
Hostile-Environment Harassment and the First Amendment, 52 Ohio St.
L. J. 481, 483 (1991) (``A broad definition of sexual and racial
harassment necessarily delegates broad powers to courts to determine
matters of taste and humor, and the vagueness of the definition of
`harassment' leaves those subject to regulation without clear notice
of what is permitted and what is forbidden. The inescapable result
is a substantial chilling effect on expression.'').
---------------------------------------------------------------------------
The Department contends that, similar to laws setting a legal limit
over which a person's blood alcohol level constitutes illegal driving
while intoxicated,\694\ the Sec. 106.30 definition as a whole sets a
threshold over which a person's unwelcome conduct constitutes sexual
harassment. While some harassment does not meet the threshold, serious
incidents that jeopardize equal educational access exceed the threshold
and are actionable. In addition, the Sec. 106.30 definition includes
single instances of quid pro quo harassment and Clery Act/VAWA
offenses, requiring recipients to address serious problems before such
problems have repeated or multiplied and become more difficult to
address. Similarly, the Department disagrees that Sec. 106.30 makes
complainants wait until sexually predatory behavior becomes extremely
serious, because the definition as a whole captures serious conduct
(not just ``extremely'' serious conduct) that Title IX prohibits.
---------------------------------------------------------------------------
\694\ While several States have zero-tolerance laws for driving
while intoxicated that set illegal blood alcohol content levels at
anything over 0.00, those zero-tolerance laws only apply to persons
under the legal drinking age; for persons age 21 and older, all
States have laws that set an illegal blood alcohol content level at
0.08--in other words, not all levels of intoxication are prohibited,
but rather only blood alcohol content levels above a certain amount.
See Michael Wechsler, DUI, DWI, and Zero Tolerance Laws by State,
TheLaw.com, https://www.thelaw.com/law/dui-dwi-and-zero-tolerance-laws-by-state.178/.
---------------------------------------------------------------------------
The Department understands commenters' concerns that if a
complainant reports a sexual harassment incident that does not meet the
Sec. 106.30 definition, that complainant may feel discouraged from
reporting a second time if the sexual harassment escalates to meet the
Sec. 106.30 definition. However, complainants and recipients have long
been familiar with the concept that sexual harassment must meet a
certain threshold to be considered actionable under Federal non-
discrimination laws.\695\ The final regulations follow the same
approach, and the Department does not believe that having a threshold
for when harassment is actionable will chill reporting. The Department
also reiterates that recipients retain discretion to respond to
misconduct not covered by Title IX.
---------------------------------------------------------------------------
\695\ In the workplace under Title VII, and in educational
environments under Title IX as interpreted in the Department's 2001
Guidance, not all sexual harassment is actionable. Title VII
requires severe or pervasive conduct that alters a condition of
employment. E.g., Meritor, 477 U.S. at 67 (``For sexual harassment
to be actionable, it must be sufficiently severe or pervasive to
alter the conditions of [the victim's] employment and create an
abusive working environment.'') (internal quotation marks and
citation omitted). The 2001 Guidance requires conduct ``sufficiently
serious'' to deny or limit the complainant's ability to participate
in education to be actionable under Title IX. 2001 Guidance at 5.
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters argued that adopting a narrower
definition of sexual harassment makes it easier for sexist,
misogynistic, and homophobic microaggressions, including sexist
hostility and crude behavior, to continue unchecked. Commenters argued
that making the definition of sexual harassment less inclusive tacitly
condones microaggressions, making campuses less safe and decreasing
diversity because more students from underrepresented groups will
perform worse in school or leave school entirely.
A few commenters recommended that the definition include
microaggressions. Some commenters asserted that microaggressions can
cause the same negative impact on victims as more severe harassment
does.\696\ Other commenters asserted that using a ``severe, pervasive,
and objectively offensive'' standard fails to consider personal,
cultural, and religious differences in determining what constitutes
sexual harassment, ignoring the fact that especially for individuals in
marginalized identity groups, microaggressions may not seem pervasive
or severe to an outsider but accumulate to make marginalized students
feel unwelcome and unable to continue their education. One commenter
suggested that rather than narrow the definition of harassment, it
should be expanded to include what one professor has called
``creepiness.'' \697\ A few commenters asserted that cat-calling and
other microaggressions may constitute more subtle forms of sexual
harassment yet cause very real harms to victims \698\ and the final
regulations should protect more students from harmful violations of
bodily and mental autonomy and dignity. At least one commenter argued
that research indicates that gendered microaggressions, while not
extreme, increase the likelihood of high-severity sexual violence \699\
and that unaddressed subtly aggressive behavior leads to more extreme
sexual harassment.\700\
---------------------------------------------------------------------------
\696\ Commenter cited: Lucas Torres & Joelle T. Taknint, Ethnic
microaggressions, traumatic stress symptoms, and Latino depression:
A moderated mediational model, 62 Journal of Counseling Psychol. 3
(2015).
\697\ Commenters cited: Bonnie Mann, Creepers, Flirts, Heroes,
and Allies: Four Theses on Men and Sexual Harassment, 11 Am. Phil.
Ass'n Newsletter on Feminism & Philosophy 24 (2012).
\698\ Commenter cited: Emma McClure, Theorizing a Spectrum of
Aggression: Microaggressions, Creepiness, and Sexual Assault, 14 The
Pluralist 1 (2019) (noting an accepted definition of
``microaggressions'' as ``the brief and commonplace daily verbal,
behavioral, and environmental indignities, whether intentional or
unintentional, that communicate hostile, derogatory, or negative
racial, gender, sexual-orientation, and religious slights and
insults to the target person or group'' and stating that ``although
each individual microaggression may seem negligible, when repeated
over time, microaggressions can seriously damage the target's mental
and physical health'').
\699\ Commenters cited: Rachel E. Gartner & Paul R. Sterzing,
Gender Microaggressions as a Gateway to Sexual Harassment and Sexual
Assault: Expanding the Conceptualization of Youth Sexual Violence,
31 Affilia: J. of Women & Social Work 4 (2016).
\700\ Commenters cited: Dorothy Espelage et al., Longitudinal
Associations Among Bullying, Homophobic Teasing, and Sexual Violence
Perpetration Among Middle School Students, 30 Journal of
Interpersonal Violence 14 (2015).
---------------------------------------------------------------------------
One commenter suggested that recipients will save money by
investigating all survivor complaints, including of microaggressions,
rather than waiting until harassment is severe and pervasive, because
trauma from sexual harassment is analogous to chronic traumatic
encephalopathy (CTE) in contact sports--it is not necessarily one big
trauma that causes CTE but many repeated and seemingly asymptomatic
injuries that accumulate over time causing CTE. Commenters argued that
schools should be required, or at least allowed, to intervene in cases
less severe than the Sec. 106.30 definition.
Discussion: The Department appreciates commenters' concerns about
the harm that can result from microaggressions, cat-calling, and
hostile, crude, or ``creepy'' behaviors that can make students feel
unwelcome,
[[Page 30161]]
unsafe, disrespected, insulted, and discouraged from participating in a
community or in programs or activities. However, the Supreme Court has
cautioned that while Title VII and Title IX both prohibit sex
discrimination, neither of these Federal civil rights laws is designed
to become a general civility code.\701\ The Supreme Court interpreted
Title IX's non-discrimination mandate to prohibit sexual harassment
that rises to a level of severity, pervasiveness, and objective
offensiveness such that it denies equal access to education.\702\ The
Davis Court acknowledged that while misbehavior that does not meet that
standard may be ``upsetting to the students subjected to it,'' \703\
Title IX liability attaches only to sexual harassment that does meet
the Davis standard. The Department declines to prohibit
microaggressions as such, but notes that what commenters and
researchers consider microaggressions \704\ could form part of a course
of conduct reaching severity, pervasiveness, and objective
offensiveness under Sec. 106.30, though a fact-specific evaluation of
specific conduct is required. As to a commenter's likening of
microaggressions to ``asymptomatic'' injuries that in the aggregate
cause CTE from playing contact sports, actionable sexual harassment
under Title IX involves conduct that is unwelcome and so severe,
pervasive, and objectively offensive that it effectively denies a
person equal access to the recipient's education program or activity.
Where harm results from behavior that does not meet the Sec. 106.30
definition of sexual harassment, nothing in these final regulations
precludes recipients from addressing such behavior under a recipient's
own student or employee conduct code.
---------------------------------------------------------------------------
\701\ Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(``These standards for judging hostility are sufficiently demanding
to ensure that Title VII does not become a `general civility code.'
. . . Properly applied, they will filter out complaints attacking
the ordinary tribulations of the workplace, such as the sporadic use
of abusive language, gender-related jokes, and occasional
teasing.'') (internal quotation marks and citations omitted); Davis,
526 U.S. at 684 (Kennedy, J., dissenting) (``the majority seeks, in
effect, to put an end to student misbehavior by transforming Title
IX into a Federal Student Civility Code.''); id. at 652 (refuting
dissenting justices' arguments that the majority opinion permits too
much liability under Title IX or turns Title IX into a general
civility code, by emphasizing that it is not enough to show that a
student has been teased, called offensive names, or taunted, because
liability attaches only to sexual harassment that is severe and
pervasive); Julie Davies, Assessing Institutional Responsibility for
Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 407
(2002) (``Although the Court adopted different standards for
institutional liability under Titles VII and IX, several themes
serve as leitmotifs, running through the cases regardless of the
technical differences. Neither Title VII nor Title IX is construed
as a federal civility statute; the Court does not want entities to
be obliged to litigate cases where plaintiffs have been subjected to
`minor' annoyances and insults.'') (internal citation omitted).
\702\ Davis, 526 U.S. at 652.
\703\ Id. at 651-52.
\704\ See, e.g., Emma McClure, Theorizing a Spectrum of
Aggression: Microaggressions, Creepiness, and Sexual Assault, 14 The
Pluralist 1 (2019) (noting an accepted definition of
``microaggressions'' as ``the brief and commonplace daily verbal,
behavioral, and environmental indignities, whether intentional or
unintentional, that communicate hostile, derogatory, or negative
racial, gender, sexual-orientation, and religious slights and
insults to the target person or group'').
---------------------------------------------------------------------------
As noted above, the fact that not every harassing or offensive
remark is prohibited under Title IX in no way condones or encourages
crude, insulting, demeaning behavior, which recipients may address
through a variety of actions; as a commenter pointed out, a recipient's
response could include providing a complainant with supportive
measures, responding to the conduct in question with institutional
speech, or offering programming designed to foster a more welcoming
campus climate generally, including with respect to marginalized
identity groups. We have revised Sec. 106.45(b)(3) in the final
regulations to clarify that mandatory dismissal of a formal complaint
due to the allegations not meeting the Sec. 106.30 definition of
sexual harassment does not preclude a recipient from acting on the
allegations through non-Title IX codes of conduct. The final
regulations also permit a recipient to provide supportive measures to a
complainant even where the conduct alleged does not meet the Sec.
106.30 definition of sexual harassment.
Changes: We have revised Sec. 106.45(b)(3) to clarify that
mandatory dismissal of a formal complaint because the allegations do
not constitute sexual harassment as defined in Sec. 106.30 does not
preclude a recipient from addressing the allegations through the
recipient's code of conduct.
Comments: Several commenters argued that concern for protecting
free speech and academic freedom does not require or justify using the
Davis definition of sexual harassment in the second prong of the Sec.
106.30 definition because harassment is not protected speech if it
creates a hostile environment.\705\ Commenters asserted that schools
have the authority to regulate harassing speech,\706\ that there is no
conflict between the First Amendment and Title IX's protection against
sexually harassing speech, and that the Department has no evidence that
a broader definition of harassment over the last 20 years has infringed
on constitutionally protected speech or academic freedom. On the other
hand, at least one commenter argued that verbal conduct creating a
hostile environment may still be constitutionally protected
speech.\707\
---------------------------------------------------------------------------
\705\ Commenters cited: Joanna L. Grossman & Deborah L. Brake, A
Sharp Backward Turn: Department of Education Proposes to Protect
Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov.
29, 2018) (``There is no legitimate First Amendment or academic
freedom protection afforded to unwelcome sexual conduct that creates
a hostile educational environment.'').
\706\ Commenters cited: Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 513-14 (1969) (holding school officials can
regulate student speech if they reasonably forecast ``substantial
disruption of or material interference with school activities'' or
if the speech involves ``invasion of the rights of others'').
\707\ Commenters cited: White v. Lee, 227 F.3d 1214, 1236-37
(9th Cir. 2000) (refusing to extend labor law precedents allowing
restrictions on workplace speech to non-workplace contexts such as
discriminatory speech about housing projects); UWM Post, Inc. v. Bd.
of Regents of Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991)
(holding student speech that created a hostile environment was
protected even though workplace speech creating a hostile
environment is banned by Title VII).
---------------------------------------------------------------------------
Discussion: The Supreme Court has not squarely addressed the
intersection between First Amendment protection of speech and academic
freedom, and non-sex discrimination Federal civil rights laws that
include sexual harassment as a form of sex discrimination (i.e., Title
VII and Title IX).\708\ With respect to sex discriminatory conduct in
the form of admissions or hiring and firing decisions, for example,
prohibiting such conduct does not implicate constitutional concerns
even when the conduct is accompanied by speech,\709\ and similarly,
when sex discrimination occurs in the form of non-verbal sexually
harassing conduct, or speech used to harass in a quid pro quo manner,
stalk, or threaten violence
[[Page 30162]]
against a victim, no First Amendment problem exists.\710\ However, with
respect to speech and expression, tension exists between First
Amendment protections and the government's interest in ensuring
workplace and educational environments free from sex discrimination
when the speech is unwelcome on the basis of sex.\711\
---------------------------------------------------------------------------
\708\ Saxe v. State College Area Sch. Dist., 240 F.3d 200, 204,
207 (3d Cir. 2001) (``There is no categorical `harassment exception'
to the First Amendment's free speech clause.'') (``Although the
Supreme Court has written extensively on the scope of workplace
harassment, it has never squarely addressed whether harassment, when
it takes the form of pure speech, is exempt from First Amendment
protection'') (``Loosely worded anti-harassment laws may pose some
of the same problems as the St. Paul hate speech ordinance [struck
down by the Supreme Court as unconstitutional in R.A.V. v. City of
St. Paul, 505 U.S. 377 (1992)]: they may regulate deeply offensive
and potentially disruptive categories of speech based, at least in
part, on subject matter and viewpoint.'').
\709\ E.g., John F. Wirenius, Actions as Words, Words as
Actions: Sexual Harassment Law, the First Amendment and Verbal Acts,
28 Whittier L. Rev. 905 (2007) (identifying a First Amendment issue
only with respect to hostile environment sexual harassment, as
opposed to discriminatory conduct in the form of discrete employment
decisions and quid pro quo sexual harassment).
\710\ Id.; Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993)
(citing Supreme Court cases in support of the view that a variety of
conduct can be prohibited even where the person engaging in the
conduct uses speech or expresses an idea, such that the First
Amendment provides no protection for physical assault, violence,
threat of violence, or other special harms distinct from
communicative impact); United States v. Osinger, 753 F.3d 939, 953
(9th Cir. 2014) (``Because the sole immediate object of [the
defendant's] speech was to facilitate his commission of the
interstate stalking offense, that speech isn't entitled to
constitutional protection.'') (internal quotation marks and citation
omitted).
\711\ Andrea Meryl Kirshenbaum, Hostile Environment Sexual
Harassment Law and the First Amendment: Can the Two Peacefully
Coexist?, 12 Tex. J. of Women & the L. 67, 68-70 (2002) (``Although
the Supreme Court has never directly addressed this issue, the
tension between the First Amendment and hostile environment sexual
harassment law is evidenced by an increase in litigation involving
these issues in courts throughout the nation.'' . . . ``the clash
between the First Amendment and the hostile environment sexual
harassment doctrine is acute.''); Peter Caldwell, Hostile
Environment Sexual Harassment & First Amendment Content-Neutrality:
Putting the Supreme Court on the Right Path, 23 Hofstra Lab. & Emp.
L. J. 373 (2006) (``Where pure expression is involved, Title VII
steers into the territory of the First Amendment. It is no use to
deny or minimize this problem because, when Title VII is applied to
sexual harassment claims founded solely on verbal insults, pictorial
or literary matter, the statute imposes content-based, viewpoint-
discriminatory restrictions on speech.''); John F. Wirenius, Actions
as Words, Words as Actions: Sexual Harassment Law, the First
Amendment and Verbal Acts, 28 Whittier L. Rev. 905 (2007) (``For
nearly two decades, a debate has smoldered over the perceived
tension between the law of sexual harassment and the First
Amendment's guarantee of freedom of speech. As the protection
against sexual harassment in the workplace spread beyond overt
discrimination in discrete employment decisions and quid pro quo
sexual harassment to include the less readily quantified `hostile
work environment,' free speech advocates became less sanguine about
the compatibility between the protections against workplace
discrimination and the First Amendment, especially its proscription
of viewpoint discrimination.''). The same tension exists with
respect to the First Amendment, and verbal and expressive unwelcome
conduct on the basis of sex under Title IX, and the Department aims
to ensure through a carefully crafted definition of actionable
sexual harassment that ``discrete'' sex offenses ``and quid pro quo
sexual harassment'' are per se sexual harassment under Title IX
because no First Amendment issues are raised, while verbal and
expressive conduct is evaluated under the Davis standard so that
prohibiting sexual harassment under Title IX is consistent with the
First Amendment.
---------------------------------------------------------------------------
In striking down a city ordinance banning bias-motivated disorderly
conduct, the Supreme Court in R.A.V. v. City of St. Paul emphasized
that the First Amendment generally prevents the government from
proscribing speech or expressive conduct ``because of disapproval of
the ideas expressed. Content-based regulations are presumptively
invalid.'' \712\ The Supreme Court explained that even categories of
speech that can be regulated consistent with the First Amendment (for
example, obscenity and defamation) cannot do so in a content-
discriminatory manner (for instance, by prohibiting only defamation
that criticizes the government).\713\ The Supreme Court further
explained that while ``fighting words'' can permissibly be proscribed
under First Amendment doctrine, such a conclusion is based on the
nature of fighting words to provoke injury and violence,\714\ not
merely the impact on the listener to be insulted or offended, and
government still cannot regulate ``based on hostility--or favoritism--
towards the underlying message expressed.'' \715\ Side-stepping the
direct question of how the First Amendment prohibition against content-
based regulations applies to hostile environment sexual harassment
claims based on speech rather than acts, the R.A.V. Court stated that
``sexually-based `fighting words''' could ``produce a violation of
Title VII's general prohibition against sexual discrimination in
employment practices'' because ``[w]here the government does not target
conduct on the basis of its expressive conduct, acts are not shielded
from regulation merely because they express a discriminatory idea or
philosophy.'' \716\ The R.A.V. Court struck down the city ordinance at
issue, even though it was intended to protect persons in historically
marginalized groups from victimization, in part because the ``secondary
effect'' of whether a particular listener or audience is offended by
speech does not justify restricting the speech.\717\ In striking down
the ordinance, the Supreme Court noted that city officials retained the
ability to communicate their hostility for certain biases--but not
``through the means of imposing unique limitations upon speakers who
(however benightedly) disagree.'' \718\
---------------------------------------------------------------------------
\712\ R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
\713\ See id. at 383-84.
\714\ Id. at 380-81 (citing Chaplinsky v. New Hampshire, 315
U.S. 568, 572 (1942) for proposition that ``fighting words''
represent ``conduct that itself inflicts injury or tends to incite
immediate violence'').
\715\ Id. at 386.
\716\ Id. at 389-90 (internal citation omitted) (emphasis
added).
\717\ Id. at 394.
\718\ Id. at 395-96.
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Seven years after deciding R.A.V. under the First Amendment, the
Supreme Court decided Davis under Title IX. While the Davis Court did
not raise the issue of First Amendment intersection with anti-sexual
harassment regulation,\719\ it focused on the sexually harassing
conduct of the peer-perpetrator in that case,\720\ indicating that the
Supreme Court recognizes that proscribing conduct, as opposed to
speech, raises no constitutional concerns, and that even when anti-
harassment rules are applied to verbal harassment, requiring the
harassment to be so severe, pervasive, and objectively offensive that
it effectively denies a person equal access to education avoids putting
recipients in the untenable position of protecting a recipient from
legal liability arising from how the recipient responds to sexual
harassment only by unconstitutionally restricting its students' (or
employees') rights to freedom of speech and expression.
---------------------------------------------------------------------------
\719\ The majority opinion did not address First Amendment
concerns, although the dissent raised the issue. Davis, 526 U.S. at
667-68 (Kennedy, J., dissenting) (``A university's power to
discipline its students for speech that may constitute sexual
harassment is also circumscribed by the First Amendment. A number of
federal courts have already confronted difficult problems raised by
university speech codes designed to deal with peer sexual and racial
harassment. See, e.g., Dambrot v. Cent. Michigan Univ., 55 F.3d 1177
(6th Cir. 1995) (striking down university discriminatory harassment
policy because it was overbroad, vague, and not a valid prohibition
on fighting words); UWM Post, Inc. v. Bd. of Regents of Univ. of
Wisconsin Sys., 774 F.Supp. 1163 (E.D. Wis. 1991) (striking down
university speech code that prohibited, inter alia, `discriminatory
comments' directed at an individual that `intentionally . . .
demean' the `sex . . . of the individual' and `create an
intimidating, hostile or demeaning environment for education,
university related work, or other university-authorized activity');
Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (similar);
Iota XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993
F.2d 386 (4th Cir. 1993) (overturning on First Amendment grounds
university's sanctions on a fraternity for conducting an `ugly woman
contest' with `racist and sexist' overtones) The difficulties
associated with speech codes simply underscore the limited nature of
a university's control over student behavior that may be viewed as
sexual harassment.''). Presumably, the majority believed that
ensuring that even verbal harassment that meets the severe,
pervasive, and objectively offensive standard avoids this
constitutional problem; the majority expressed a similar rationale
in response to the dissent's contention that the majority opinion
permitted too much liability against recipients. Davis, 526 U.S. at
651-53.
\720\ Davis, 526 U.S. at 653 (``Petitioner alleges that her
daughter was the victim of repeated acts of sexual harassment by G.
F. over a 5-month period, and there are allegations in support of
the conclusion that G. F.'s misconduct was severe, pervasive, and
objectively offensive. The harassment was not only verbal; it
included numerous acts of objectively offensive touching, and,
indeed, G. F. ultimately pleaded guilty to criminal sexual
misconduct.'') (emphasis added).
---------------------------------------------------------------------------
The legal commentary and Supreme Court precedent often cited by
[[Page 30163]]
commenters \721\ arguing that the Davis definition of sexual harassment
is not necessary for protection of First Amendment freedoms because
harassment is unprotected if it creates a hostile environment, and
because schools have authority to regulate harassing speech, do not
support a conclusion that a categorical ``harassment exception'' exists
under First Amendment law and do not justify applying a standard lower
than the Davis standard for speech-based harassment in the educational
context. For example, the statement in a legal commentary frequently
cited by commenters that ``[t]here is no legitimate First Amendment or
academic freedom protection afforded to unwelcome sexual conduct that
creates a hostile educational environment'' contains no citations to
legal authority.\722\ Likewise, commenters citing Tinker v. Des Moines
Indep. Comm. Sch. Dist. for the proposition that school officials can
regulate student speech if they reasonably forecast ``substantial
disruption of or material interference with school activities'' or if
the speech involves ``invasion of the rights of others'' fail to
acknowledge: (i) In Tinker the Supreme Court struck down the school
decision in that case forbidding students from wearing armbands
expressing opposition to war because that expressive conduct was akin
to pure speech warranting First Amendment protection; \723\ (ii) the
Tinker Court insisted that the ``substantial disruption'' or
``interference with school activities'' exceptions only apply where
school officials have more than unspecified fear of disruption or
interference; \724\ and (iii) the precise scope of Tinker's
``interference with the rights of others'' language is unclear, but is
comparable to the Davis standard.\725\ By requiring threshold levels of
serious interference with work or education environments before sexual
harassment is actionable, the Supreme Court standards under Meritor
\726\ (for the workplace) and Davis \727\ (for schools, colleges, and
universities) prevent these non-discrimination laws from infringing on
speech and academic freedom,\728\ precisely because non-discrimination
laws are not ``categorically immune from First Amendment challenge when
they are applied to prohibit speech solely on the basis of its
expressive content.'' \729\
---------------------------------------------------------------------------
\721\ E.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503, 513-14 (1969); Joanna L. Grossman & Deborah L. Brake, A
Sharp Backward Turn: Department of Education Proposes to Protect
Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov.
29, 2018).
\722\ Joanna L. Grossman & Deborah L. Brake, A Sharp Backward
Turn: Department of Education Proposes to Protect Schools, Not
Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018)
(stating, without citation to legal authority, the proposition that
``There is no legitimate First Amendment or academic freedom
protection afforded to unwelcome sexual conduct that creates a
hostile environment'').
\723\ Tinker, 393 U.S. at 505-06 (``the wearing of armbands in
the circumstances of this case was entirely divorced from actually
or potentially disruptive conduct by those participating in it. It
was closely akin to `pure speech' which, we have repeatedly held, is
entitled to comprehensive protection under the First Amendment.'').
\724\ Id. at 508 (``undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression'').
\725\ B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293
(3d Cir. 2013) (``As we have repeatedly noted, the precise scope of
Tinker's `interference with the rights of others' language is
unclear.'') (internal quotation marks and citation omitted); cf.
Brett A. Sokolow et al., The Intersection of Free Speech and
Harassment Rules, 38 Hum. Rights 19 (2011) (``The Tinker standard is
comparable to the Davis standard, which places the threshold for
harassment at the point where conduct `bars the victim's access to
an educational opportunity,' in that speech can be restricted only
when the educational process is substantially impeded. In other
words, when reviewing school policies, and the implementation
thereof, it is critical to ensure students are being disciplined as
a result of the objective impact of their speech, and not solely
based on its content and/or the feelings of those to whom that
speech is targeted.'').
\726\ Meritor, 477 U.S. at 67; see also John F. Wirenius,
Actions as Words, Words as Actions: Sexual Harassment Law, the First
Amendment and Verbal Acts, 28 Whittier L. Rev. 905, 908 (2007)
(arguing that the hostile work environment doctrine, properly
understood with its critical threshold requirement that harassing
speech be severe or pervasive enough to create an objectively
hostile or abusive work environment, converts harassing speech into
``verbal conduct'' that may be regulated under Title VII consistent
with the First Amendment). Similarly, when harassing speech is
severe, pervasive, and objectively offensive enough to create
deprivation of equal educational access it may be regulated under
Title IX consistent with the First Amendment.
\727\ Davis, 526 U.S. at 651 (``Rather, a plaintiff must
establish sexual harassment of students that is so severe,
pervasive, and objectively offensive, and that so undermines and
detracts from the victims' educational experience, that the victim-
students are effectively denied equal access to an institution's
resources and opportunities.''); Brett A. Sokolow, et al., The
Intersection of Free Speech and Harassment Rules, 38 Hum. Rights 19
(2011) (cautioning that institutional anti-harassment policies must
not prevent students from exercising rights of speech and
expression, a result that the Davis standard makes clear).
\728\ E.g., Brett A. Sokolow et al., The Intersection of Free
Speech and Harassment Rules, 38 Hum. Rights 19, 20 (2011)
(``[S]chool regulations and actions that impact speech must be
content and viewpoint neutral and must be narrowly tailored to fit
the circumstances. These regulations must be clear enough for a
person of ordinary intelligence to understand, or courts will find
them unconstitutionally void for vagueness. They cannot overreach by
covering both protected and unprotected speech or courts will find
them unconstitutionally overbroad. The regulation cannot act to
preemptively prevent students from exercising their right to freely
express themselves because the courts will find the prior restraint
of speech presumptively unconstitutional.'') (``In some ways,
activist courts, agencies, and educational messages about civility
and tolerance may have given a false impression that any sexist,
ageist, racist, and so forth, remark is tantamount to harassment. As
a society, we now use the term `harassment' to mean being bothered,
generically. We must distinguish generic harassment from
discriminatory harassment. The standard laid out in Davis . . .
makes this clear: To be considered discriminatory harassment, the
conduct in question must be `so severe, pervasive, and objectively
offensive that it effectively bars the victim's access to an
educational opportunity or benefit.' '') (emphasis in original).
\729\ Saxe, 240 F.3d at 209.
---------------------------------------------------------------------------
The First Amendment plays a crucial role in ensuring that the
American government remains responsive to the will of the people and
effects peaceful change by fostering free, robust exchange of
ideas,\730\ including those relating to sex-based equality and
dignity.\731\ There is no doubt that words can wound, and speech can
feel like an ``assault, seriously harm[ing] a private individual'' with
effects that often
[[Page 30164]]
linger.\732\ Nonetheless, serious risks attach to soliciting the
coercive power of government to enforce even laudable social norms such
as respect and civility.\733\ Even low-value speech warrants
constitutional protection, in part because government should not be the
arbiter of valuable versus worthless expression.\734\ This principle
holds true for elementary and secondary schools as well as
postsecondary institutions.\735\ Schools, colleges, and universities,
and their students and employees, who find speech offensive, have
numerous avenues to confront offensive speech without ``the means of
imposing unique limitations upon speakers who (however benightedly)
disagree.''\736\
---------------------------------------------------------------------------
\730\ See Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)
(``The vitality of civil and political institutions in our society
depends on free discussion. . . . [I]t is only through free debate
and free exchange of ideas that government remains responsive to the
will of the people and peaceful change is effected. The right to
speak freely and to promote diversity of ideas and programs is
therefore one of the chief distinctions that sets us apart from
totalitarian regimes. Accordingly a function of free speech under
our system of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs
people to anger. Speech is often provocative and challenging. It may
strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom
of speech, though not absolute . . . is nevertheless protected
against censorship or punishment, unless shown likely to produce a
clear and present danger of a serious substantive evil that rises
far above public inconvenience, annoyance, or unrest.'') (internal
citations omitted).
\731\ Azhar Majeed, The Misapplication of Peer Harassment Law on
College and University Campuses and the Loss of Student Speech
Rights, 35 Journal of Coll. & Univ. L. 385, 397 (2009) (``In
drafting and applying their harassment policies, colleges and
universities frequently target protected speech merely because the
expression in question is alleged to be sexist, prejudicial, or
demeaning. . . . This approach ignores the fact that even explicitly
sexist or racist speech is entitled to protection, and all the more
so where it espouses views on important issues of social policy. Few
people would disagree, for example, that the subjects of relations
between the sexes, women's rights, and the pursuit of economic and
social equality are all important matters of public concern and
debate. Therefore, speech relating to such topics, regardless of
whether it takes a favorable or negative view of women, is highly
germane to the debate of public matters and social policy. In the
marketplace of ideas, these expressions should not be suppressed
merely to avoid offense or discomfort.'') (citing Am. Booksellers
Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (holding invalid under
the First Amendment a statute that prohibited pornography depicting
the subordination of women because the statute was a content-based
restriction--that is, it applied not to all sexual depictions but to
depictions of women in a disfavored manner).
\732\ Snyder v. Phelps, 562 U.S. 443, 461 (2011) (Breyer, J.,
concurring); see also Davis, 526 U.S. at 651-52 (acknowledging that
gender-based banter, insults, and teasing can be upsetting to those
on the receiving end).
\733\ Catherine J. Ross, Assaultive Words and Constitutional
Norms, 66 Journal of Legal Educ. 739, 744 (2017) (``Recently,
students have been in the vanguard, demanding that offensive speech
be silenced. Students ask to be protected from hurtful words,
sentiments, even gestures, and inadvertent facial clues or rolling
eyes that communicate dismissal. They seek the coercive power of
authority to enforce laudable social norms--respect, dignity, and
equality regardless of race, ethnicity, gender, gender identity, and
so forth. Meritorious as these proclaimed goals are, the rules and
penalties some students lobby for would suppress the expressive
rights of others including students, faculty, and invited guests, a
particularly disturbing prospect at an institution devoted to the
academic enterprise.'').
\734\ Id. at 749-50 (2017) (``Many people question whether rude
epithets, crude jokes, and disparaging statements are the kind of
expression that merits First Amendment protection. The Supreme Court
has long held the Constitution protects the right to speak
`foolishly and without moderation.' You might maintain that racist,
misogynist and other vile speech makes no contribution at all to the
exchange of ideas--but the Speech Clause protects even so-called
low-worth expression, in large part because no public authority can
be trusted to distinguish valuable from worthless expression. The
government cannot ban hateful expression, no matter how hurtful.'')
(citing Cohen v. California, 403 U.S. 15, 25-26 (1971)).
Furthermore, permitting censorship of speech in an effort to be on
the right side of history with respect to racial or sexual equality
ignores the role that commitment to the First Amendment has played
in achieving milestones for racial and sexual equality. See, e.g.,
Nadine Strossen, Regulating Racist Speech on Campus: A Modest
Proposal?, 1990 Duke L. J. 484, 536-37 (1990) (``History
demonstrates that if the freedom of speech is weakened for one
person, group, or message, then it is no longer there for others.
The free speech victories that civil libertarians have won in the
context of defending the right to express racist and other anti-
civil libertarian messages have been used to protect speech
proclaiming anti-racist and pro-civil libertarian messages. For
example, in 1949, the ACLU defended the right of Father Terminiello,
a suspended Catholic priest, to give a racist speech in Chicago. The
Supreme Court agreed with that position in a decision that became a
landmark in free speech history. Time and again during the 1960s and
1970s, the ACLU and other civil rights groups were able to defend
free speech rights for civil rights demonstrators by relying on the
Terminiello decision [Terminiello v. City of Chicago, 337 U.S. 1
(1949)].'') (internal citations omitted); see also Anthony D.
Romero, Equality, Justice and the First Amendment, American Civil
Liberties Union (ACLU) (Aug. 15, 2017), https://www.aclu.org/blog/free-speech/equality-justice-and-first-amendment (explaining that
the ACLU's nearly century-long history defending freedom of speech
``including speech we abhor'' is due to belief that ``our democracy
will be better and stronger for engaging and hearing divergent
views. Racism and bigotry will not be eradicated if we merely force
them underground. Equality and justice will only be achieved if
society looks such bigotry squarely in the eyes and renounces it. .
. . There is another reason that we have defended the free speech
rights of Nazis and the Ku Klux Klan. . . . We simply never want
government to be in a position to favor or disfavor particular
viewpoints.'').
\735\ See Catherine J. Ross, Assaultive Words and Constitutional
Norms, 66 Journal of Legal Educ. 739, 754-55 (2017)
(``Constitutional doctrine asks our youngest students to use the
traditional constitutional responses to vile speech: Walk away,
don't listen, or respond with `more and better speech.' These
general First Amendment principles apply with at least as much vigor
to college campuses, where most students are adults, not
schoolchildren, the guiding ethos of higher education supplements
constitutional mandates, and students are not compelled to attend.
Looking at what the Constitution requires in grades K-12 reveals a
lot about what we should expect the adults enrolled in college to
have the capacity to withstand. Since our constitutional framework
expects this degree of coping from children beginning in elementary
school, it is not asking too much of college students to handle
offensive sentiments by using the standard First Amendment tools:
Walk away, throw the pamphlet in the trash, get off the screen or,
even better, tackle objectionable speech with more and better
speech.'') (discussing and citing Nuxoll v. Indian Prairie Sch.
Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008); Saxe v. State Coll.
Area Sch. Dist., 240 F.3d 200, 202 (3d Cir. 2001); Nixon v. N. Local
Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 967 (S.D. Ohio 2005)).
\736\ R.A.V., 505 U.S. at 395-96. As a commenter observed,
recipients retain the ability and discretion to respond to offensive
speech by a student (or employee) by providing the complainant with
supportive measures, responding to the offensive speech with
institutional speech, or offering programming designed to foster a
welcoming campus climate more generally.
---------------------------------------------------------------------------
The Department believes that the tension between student and
faculty freedom of speech, and regulation of speech to prohibit sexual
harassment, is best addressed through rules that prohibit harassing and
assaultive physical conduct, while ensuring that harassment in the form
of speech and expression is evaluated for severity, pervasiveness,
objective offensiveness, and denial of equal access to education. This
is the approach taken in the Sec. 106.30 definition of sexual
harassment, under which quid pro quo harassment and Clery Act/VAWA
offenses receive per se treatment as actionable sexual harassment,
while other forms of harassment must meet the Davis standard. This
approach balances the ``often competing demands of the First
Amendment's express guarantee of free speech and the Fourteenth
Amendment's implicit promise of dignity and equality.'' \737\
---------------------------------------------------------------------------
\737\ Catherine J. Ross, Assaultive Words and Constitutional
Norms, 66 Journal of Legal Educ. 739, 739 (2017) (``Campuses are
rocked by racially and sexually offensive speech and counter speech.
Offensive speech and counter speech, including demonstrations and
calls for policies that shield the vulnerable and repercussions for
offenders, are both protected by the Constitution. Yet some college
administrations regulate this protected speech. Expression on both
sides of a cultural and political divide brings to the fore a
conflict that has been simmering in legal commentary for about two
decades: The tension between the often competing demands of the
First Amendment's express guarantee of free speech and the
Fourteenth Amendment's implicit promise of dignity and equality.
This clash between two fundamental principles seems to have been
exacerbated recently by a renewed focus on identity politics both on
campus and in national and international affairs.'').
---------------------------------------------------------------------------
Contrary to commenters' assertions, evidence that broadly and
loosely worded anti-harassment policies have infringed on
constitutionally protected speech and academic freedom is widely
available.\738\ The fact that broadly-
[[Page 30165]]
worded anti-harassment policies have been applied to protected speech
``leads many potential speakers to conclude that it is better to stay
silent and not risk the consequences of being charged with harassment.
. . . This halts much campus discussion and debate, taking away from
the campus's function as a true marketplace of ideas.'' \739\ Where
speech and expression are not given sufficient ``breathing room,'' the
``safety valve'' function of speech is diminished.\740\ Furthermore,
even seemingly low-value speech can have a ``downstream effect of
leading to constructive discussion and debate which would not have
taken place otherwise.'' \741\ For these reasons, the Sec. 106.30
definition of sexual harassment is designed to capture non-speech
conduct broadly (based on an assumption of the education-denying
effects of such conduct), while applying the Davis standard to verbal
conduct so that the critical purposes of both Title IX and the First
Amendment can be met.
---------------------------------------------------------------------------
\738\ E.g., Azhar Majeed, The Misapplication of Peer Harassment
Law on College and University Campuses and the Loss of Student
Speech Rights, 35 Journal of Coll. & Univ. L. 385, 391-92 (2009)
(discussing examples of universities punishing protected speech
including: A student-employee charged with racial harassment merely
for reading a book entitled Notre Dame vs. The Klan; finding a
professor guilty of racial harassment for explaining in a Latin
American Politics class that the term ``wetbacks'' is commonly used
as a derogatory reference to Mexican immigrants; investigating a
criminal law professor for a sexually hostile environment where the
professor's exam presented a hypothetical case in which a woman
seeking an abortion felt thankful after she was attacked because the
physical attack resulted in the death of her fetus; finding a
student guilty of sexual harassment for posting flyers joking that
freshman women could lose weight by using the stairs); see also
Nadine Strossen, Law Professor and former ACLU President, 2015
Richard S. Salant Lecture on Freedom of the Press at Harvard
University (Nov. 5, 2015), https://shorensteincenter.org/nadine-strossen-free-expression-an-endangered-species-on-campus-transcript/
(identifying the free speech and academic freedom problems with
``the overbroad, unjustified concept of illegal sexual harassment as
extending to speech with any sexual content that anyone finds
offensive,'' opining that the current college climate exalts a
misplaced concept of ``safety'' by insisting that ``safety seeks
protection from exposure to ideas that make one uncomfortable . . .
. [W]hen it comes to safety, our students are being doubly
disserved. Too often, denied safety from physical violence, which is
critical for their education, but too often granted safety from
ideas, which is antithetical to their education,'' and detailing
numerous examples ``of campus censorship in the guise of punishing
sexual harassment'' including: Subjecting a professor to
investigation for writing an essay critical of current sexual
harassment policies; punishing a professor who, during a lecture,
paraphrased Machiavelli's comments about raping the goddess Fortuna;
finding a professor guilty of sexual harassment for teaching about
sexual topics in a graduate-level course called ``Drugs and Sin in
American Life;'' suspending a professor for showing a documentary
that examined the adult film industry; punishing a professor for
having students play roles in a scripted skit about prostitution in
a course on deviance; punishing a professor for requiring a class to
write essays defining pornography; firing an early childhood
education professor who had received multiple teaching awards, for
occasionally using vulgar language and humor about sex in her
lectures about human sexuality).
\739\ Azhar Majeed, The Misapplication of Peer Harassment Law on
College and University Campuses and the Loss of Student Speech
Rights, 35 Journal of Coll. & Univ. L. 385, 397 (2009) (``Of course,
sexual and racial harassment policies, regardless of the terms in
which they are drafted, are oftentimes applied against protected
speech, which again leads many potential speakers to conclude that
it is better to stay silent and not risk the consequences of being
charged with harassment. . . . The unfortunate result, then, is that
students have a strong incentive to refrain from saying anything
provocative, inflammatory, or bold and to instead cautiously stick
to that which is mundane or conventional. This halts much campus
discussion and debate, taking away from the campus's function as a
true marketplace of ideas.''); id. at 432-34 (discussing several
Federal court cases striking down university anti-harassment codes
as applied to constitutionally protected speech, including Cohen v.
San Bernardino Valley Coll., 92 F.3d 968 (9th Cir. 1996); Iota Xi
Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386
(4th Cir. 1993); Silva v. Univ. of N.H., 888 F. Supp. 293 (D. N.H.
1994)).
\740\ Azhar Majeed, The Misapplication of Peer Harassment Law on
College and University Campuses and the Loss of Student Speech
Rights, 35 Journal of Coll. & Univ. L. 385, 398-99 (2009)
(``Furthermore, one of the benefits of providing breathing room for
such expression is that it allows the speaker to espouse his or her
views through constructive dialogue rather than act out of
frustration by committing acts of violence or hate crimes. This
outlet has been labeled the `safety valve' function of speech.'').
\741\ Id. (``By exposing the real ugliness of prejudice,
ignorance and hate, such speech can reach and convince people in
ways that polite conversation never could. Moreover, ignorant or
misguided speech, though seemingly possessing little value or merit
on its own, often has the `downstream' effect of leading to
constructive discussion and debate which would not have taken place
otherwise. Consequently, the initial expression greatly benefits the
marketplace of ideas and enriches students' understanding of
important issues by increasing the potential for real and meaningful
debate on campus.'').
---------------------------------------------------------------------------
Changes: None.
So Severe
Comments: Some commenters asserted that the ``so severe'' element
of the second prong of the Sec. 106.30 definition means that
recipients must ignore many harassment incidents that result in
academic, economic, and psychological harm and suffering including
depression and post-traumatic stress disorder, whereas the better
approach is to treat any level of harassment as seriously as the most
severe level. Some commenters asserted that schools should never try to
tell a survivor what was or was not severe because the survivor is the
only person who can determine what was severe. Other commenters
wondered what threshold determines an incident as ``severe,'' whether
severity refers to the mental impact on the victim or the physical
nature of the unwelcome conduct (or both), and how a victim is expected
to prove severity.
Discussion: For reasons discussed above, the Department believes
that severity is a necessary element to balance protection from sexual
harassment with protection of freedom of speech and expression. The
Department interprets the Davis standard formulated in Sec. 106.30 as
subjective with respect to the unwelcomeness of the conduct (i.e.,
whether the complainant viewed the conduct as unwelcome), and the final
regulations clarify that the elements of severity, pervasiveness,
objective offensiveness, and resulting denial of equal access are
determined under a reasonable person standard.\742\ In this way,
evaluation of whether harassment is ``severe'' appropriately takes into
account the circumstances facing a particular complainant, such as the
complainant's age, disability status, sex, and other characteristics.
This evaluation does not burden a complainant to ``prove severity,''
because a complainant need only describe what occurred and the
recipient must then consider whether the described occurrence was
severe from the perspective of a reasonable person in the complainant's
position.
---------------------------------------------------------------------------
\742\ See Davis, 526 U.S. at 653-54 (applying the severe,
pervasive, objectively offensive, denial of access standard to the
facts at issue under an objective approach) (``Petitioner alleges
that her daughter was the victim of repeated acts of sexual
harassment by G. F. over a 5-month period, and there are allegations
in support of the conclusion that G. F.'s misconduct was severe,
pervasive, and objectively offensive. The harassment was not only
verbal; it included numerous acts of objectively offensive touching,
and, indeed, G. F. ultimately pleaded guilty to criminal sexual
misconduct. . . . Further, petitioner contends that the harassment
had a concrete, negative effect on her daughter's ability to receive
an education.'').
---------------------------------------------------------------------------
Changes: None.
And Pervasive
Comments: Many commenters believed that the ``pervasive'' element
of the second prong of the Sec. 106.30 definition means that students
would be forced to endure repeated, escalating levels of harassment
before seeking help from schools, and that by the time schools must
intervene it might be too late because victims will already have
suffered emotional harm and derailed educational futures (e.g.,
ineligibility for an advanced placement course or rejection from
admission to a dream college after grades dropped due to harassment
that was not deemed pervasive). Several commenters asserted that every
instance of discrimination deserves investigation, or else patterns of
harassment will not be discovered because each single instance will be
dismissed as not ``pervasive.'' Some such commenters argued that
without an investigation, a school will not know whether a single
instance of an inappropriate remark or joke is truly an isolated
incident or part of a pattern. A few commenters argued that especially
in elementary and secondary schools, students whose reports are turned
away for not being ``pervasive'' will be very unlikely to report again
when the conduct repeats and does become pervasive.
Several commenters described scenarios that they asserted would not
be covered as sexual harassment under Sec. 106.30 because they fail to
meet the pervasive element even though such scenarios present severe,
objectively offensive, threatening, humiliating, harm-inducing
consequences on victims, including: A professor blocking a teaching
assistant's exit from a small office while badgering the assistant with
sexual insults; a teacher inappropriately touching a student while
making sexually explicit comments during an after-school meeting;
students posting videos of ``revenge porn'' on social media.
Discussion: The Department reiterates that quid pro quo harassment
and Clery Act/VAWA offenses (sexual assault, dating violence, domestic
violence, and stalking) constitute sexual harassment under Sec. 106.30
without any evaluation for pervasiveness. Thus, students do not have to
endure repeated incidents of such abuse without recourse from a
recipient. The Department further reiterates that recipients retain
discretion to provide supportive measures to any complainant even
[[Page 30166]]
where the harassment is not pervasive. The Department disagrees that an
investigation into every offensive comment or joke is necessary in
order to discern whether the isolated comment is part of a pervasive
pattern of harassment. For reasons discussed above, chilling speech and
expression by investigating each instance of unwelcome speech is not a
constitutionally permissible way of ensuring that unlawful harassment
is not occurring. The Department appreciates commenters' concerns that
if a complainant receives no support after reporting one incident (that
does not rise to the level of actionable harassment under Title IX) the
complainant may feel deterred from reporting again if the harassment
escalates and meets the Davis standard. This is one reason why the
Department emphasizes that recipients remain free to provide supportive
measures even where alleged conduct does not meet the Sec. 106.30
definition of sexual harassment, and to utilize institutional speech
and provide general programming to foster a respectful educational
environment, none of which requires punishing or chilling protected
speech.
With respect to the scenarios presented by commenters as examples
of harassment that may not meet the Davis standard because of lack of
pervasiveness, the Department declines to make definitive statements
about examples, due to the necessarily fact-specific nature of the
analysis. However, we note that sexual harassment by a teacher or
professor toward a student or subordinate may constitute quid pro quo
harassment, which does not need to meet a pervasiveness element. The
Davis standard as applied in Sec. 106.30 is broad, encompassing any
unwelcome conduct on the basis of sex that a reasonable person would
find so severe, pervasive, and objectively offensive that a person is
effectively denied equal educational access. Disseminating ``revenge
porn,'' or conspiring to sexually harass people (such as fraternity
members telling new pledges to ``score''), or other unwelcome conduct
that harms and humiliates a person on the basis of sex may meet the
elements of the Davis standard including pervasiveness, particularly
where the unwelcome sex-based conduct involves widespread dissemination
of offensive material or multiple people agreeing to potentially
victimize others and taking steps in furtherance of the agreement.
Finally, a single instance of unwelcome physical conduct may meet
definitions of assault or battery prohibited by other laws, even if the
incident does not meet one of the three prongs of the Sec. 106.30
definition of sexual harassment.
Changes: None.
Objectively Offensive
Comments: Several commenters argued that the ``objectively
offensive'' element of the second prong of the Sec. 106.30 definition
will mean different things to different school officials, and result in
similar incidents being investigated by some schools and not by others.
Several commenters asserted that ``objectively offensive'' creates an
unnecessary and inappropriate scrutiny of victims and their
experiences, creating barriers to reporting and making campuses less
safe, contributing to victim-blaming, perpetuating myths and
misconceptions about sexual violence, and minimizing the harm caused by
sexual harassment.
Several commenters asserted that nothing is ``objectively''
offensive because what is offensive is based on how conduct
subjectively makes a person feel yet ``objective'' means not influenced
by personal feelings; these commenters argued that therefore the term
``objectively offensive'' is an oxymoron. At least one commenter argued
that research shows that individuals experience sex-based misconduct
differently, depending on prior life experiences, previous
victimization, and other factors.\743\
---------------------------------------------------------------------------
\743\ Commenters cited: Emma M. Millon et al., Stressful Life
Memories Relate to Ruminative Thoughts in Women with Sexual Violence
History, Irrespective of PTSD, Frontiers in Psychiatry 9 (2018).
---------------------------------------------------------------------------
Commenters similarly opined that offensiveness depends on the
impact of the conduct, not the intent of the perpetrator. One commenter
opined that cat-calling may not sound objectively threatening, yet
knowing that cat-calling and similar objectification of women may
contribute to physical violence against women \744\ might cause a woman
targeted by cat-calling to feel unsafe.
---------------------------------------------------------------------------
\744\ Commenters cited: Eduardo A. Vasquez et al., The sexual
objectification of girls and aggression towards them in gang and
non-gang affiliated youth, 23 Psychol., Crime & L. 5 (2017).
---------------------------------------------------------------------------
At least one commenter argued that what is ``objectively
offensive'' tends to be interpreted as what white, privileged men would
find to be offensive, lending itself to a ``boys will be boys''
attitude that excuses a lot of behavior that offends women and
marginalized individuals. One commenter recommended that the Department
issue guidance for what factors to consider so that unconscious bias
does not impact evaluation of what conduct is ``offensive.'' One
commenter claimed that the Sec. 106.30 definition fails to account for
the intersectional dynamics (race, gender, sexual orientation, culture,
etc.) that may impact the severity and objective offensiveness of an
act. This commenter argued that since the purpose of having an
investigation is to decide whether conduct was in fact severe,
pervasive, and objectively offensive it makes little sense to require
schools to dismiss claims at the outset when the rape culture pyramid
explains how small microaggressions and supposedly ``less severe''
offenses fuel a culture for severe behaviors to become normalized. This
commenter recommended that ``objectively offensive'' should be defined
and understood with a high bar for sensitive, respectful language and
conduct towards all in the community.
At least one commenter argued that because violence against women
is often normalized,\745\ and perpetrators of even heinous sexual
crimes rationalize their behaviors through victim blaming,\746\ these
social realities make it very difficult for any act of sexual violence
or harassment to be deemed ``objectively offensive'' even when the acts
are disruptive or traumatic to the victim. At least one commenter
asserted that the Sec. 106.30 definition eliminates the possibility of
recipients focusing on unique or personally harmful situations; for
example, when private or ``inside'' jokes do not seem offensive to
outsiders but have a harmful connotation for the victim.
---------------------------------------------------------------------------
\745\ Commenters cited: Heather R. Hlavka, Normalizing Sexual
Violence: Young Women Account for Harassment and Abuse, 28 Gender &
Soc'y 3 (2014).
\746\ Commenters cited: Diana Scully, & Joseph Marolla,
Convicted rapists' vocabulary of motive: Excuses and justifications,
31 Social Problems 5 (1984).
---------------------------------------------------------------------------
Several commenters noted that under case law, what is objectively
offensive is analyzed from the perspective of a reasonable person
standing in the shoes of the complainant, using an approach that
rejects disaggregation of allegations and instead looks at the
aggregate or cumulative impact of conduct.\747\ One commenter urged the
Department to clarify that whether conduct is ``severe, pervasive, and
objectively offensive'' depends on evaluation by a reasonable person
and the hypothetical ``reasonable person'' must consider both male and
female views of what is ``offensive.''
---------------------------------------------------------------------------
\747\ Commenters cited: Harris v. Forklift Sys., Inc., 510 U.S.
17 (1993).
---------------------------------------------------------------------------
At least one commenter argued that the ``objectively offensive''
element undermines a longstanding analytic requirement that recipients
evaluate
[[Page 30167]]
conduct from both objective and subjective viewpoints (e.g., 2001
Guidance at p. 5).
Discussion: The Department agrees with commenters who note that
whether harassing conduct is ``objectively offensive'' must be
evaluated under a reasonable person standard, as a reasonable person in
the complainant's position,\748\ though the Department declines to
require a commenter's suggestion that the ``reasonable person''
standard must consider offensiveness from both male and female
perspectives because the latter suggestion would invite application of
sex stereotypes. The final regulations revise the second prong of the
Sec. 106.30 definition to expressly state that the Davis elements are
determined under a reasonable person standard.
---------------------------------------------------------------------------
\748\ See Davis, 526 U.S. at 653-54 (applying the severe,
pervasive, objectively offensive, denial of access standard to the
facts at issue under an objective approach) (``there are allegations
in support of the conclusion that G. F.'s misconduct was severe,
pervasive, and objectively offensive. The harassment was not only
verbal; it included numerous acts of objectively offensive
touching''); see also Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 81 (1998) (``We have emphasized, moreover, that the
objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff's position,
considering all the circumstances.'') (internal quotation marks and
citations omitted.).
---------------------------------------------------------------------------
The Department disagrees that ``objectively offensive'' is
oxymoronic; the objective nature of the inquiry simply means that
evaluation is made by a reasonable person considering whether, standing
in the shoes of the complainant, the conduct would be offensive. The
reasonable person standard appropriately takes into account whether a
reasonable person, in the position of the particular complainant, would
find the conduct offensive, thus the standard should not result in
victims being blamed or excluded from receiving support regardless of
whether the school officials evaluating the conduct share the same
race, sex, age, or other characteristics as the complainant. It would
be inappropriate for a Title IX Coordinator to evaluate conduct for
objective offensiveness by shrugging off unwelcome conduct as simply
``boys being boys'' or make similar assumptions based on bias or
prejudice. To take that approach would risk evidencing sex-based bias
in contravention of Sec. 106.45(a) or bias for or against a
complainant or respondent in violation of Sec. 106.45(b)(1)(iii), in
addition to indicating improper evaluation of the Davis elements under
a reasonable person standard. For reasons discussed under Sec.
106.45(b)(1)(iii), the Department leaves recipients flexibility to
decide the content of the training required for Title IX personnel
under that provision, and nothing in the final regulations precludes a
recipient from addressing implicit or unconscious bias as part of such
training.
The Department disagrees that this standard inappropriately results
in different schools making different decisions about what is
objectively offensive. The Department believes that a benefit of the
Davis standard as formulated in the second prong of Sec. 106.30 is
that 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'') with the Davis elements
determined under a reasonable person standard, thereby retaining a
similar ``both subjective and objective'' analytic approach that
commenters point out is used in the 2001 Guidance.\749\ The fact-
specific nature of evaluating sexual harassment does mean that
different people may reach different conclusions about similar conduct,
but this is not unreasonable because the specific facts and
circumstances of each incident and the parties involved may require
different conclusions. The Davis standard does not require an
``intent'' element; unwelcome conduct so severe, pervasive, and
objectively offensive that it denies a person equal educational
opportunity is actionable sexual harassment regardless of the
respondent's intent to cause harm.
---------------------------------------------------------------------------
\749\ 2001 Guidance at 5 (conduct should be evaluated from both
a subjective and objective perspective); id. at fn. 39 (citing case
law for the proposition that whether conduct is severe, or
objectively offensive, must be judged from the perspective of a
reasonable person in the complainant's position, such as Harris v.
Forklift Sys., Inc., 510 U.S. 17, 20-22 (1993) (requiring subjective
and objective creation of a hostile work environment)).
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The Department disagrees that the objectively offensive element
results in unnecessary scrutiny of victims' experiences that will
create reporting barriers, make campuses less safe, lead to victim-
blaming, or perpetuate sexual violence myths and misconceptions. The
Davis standard ensures that all students, employees, and recipients
understand that unwelcome conduct on the basis of sex is actionable
under Title IX when a reasonable person in the complainant's position
would find the conduct severe, pervasive, and objectively offensive
such that it effectively denies equal access to the recipient's
education program or activity.
For reasons explained above, the Department appreciates commenters'
concerns that even conduct characterized by commenters as low-level
harassment (such as cat-calling and microaggressions) can be harmful,
and that some situations have escalated from minor incidents into
violence and even homicide against women. This is why, in response to
commenters, we have revised final Sec. 106.30 to include as per se
sexual harassment every incident of the Clery Act/VAWA offenses of
dating violence, domestic violence, and stalking (in addition to sexual
assault, which was referenced in the NPRM and remains part of the final
regulations). In this way, the Sec. 106.30 definition stands firmly
against sex-based physical conduct, including violence and threats of
violence, while ensuring that verbal and expressive conduct is
punishable as Title IX sex discrimination only when the conduct crosses
a line from protected speech into sexual harassment that denies a
person equal access to education. For the same reasons, the Sec.
106.30 definition pushes back against an historical, societal problem
of normalizing violence against women. By not imposing an ``intent''
element into the sexual harassment definition, Sec. 106.30 makes clear
that sexual harassment under any part of the Sec. 106.30 definition
cannot be excused by trying to blame the victim or rationalize the
perpetrator's behavior, tactics pointed to by commenters (and supported
by research) as common reasons why victims (particularly women) have
often faced dismissiveness, shame, or ridicule when reporting sex-based
violence to authorities.
Changes: We have revised the second prong of the Sec. 106.30
definition to expressly state that the Davis elements are determined
under a reasonable person standard.
Effectively Denies Equal Access
Comments: Many commenters objected to the element in the second
prong of the Sec. 106.30 definition that conduct ``effectively denies
a person equal access'' as a confusing, stringent, unduly restrictive
standard that will harm survivors, benefit perpetrators, and send the
message to assailants that non-physical sexual harassment is
acceptable. At least one commenter stated that requiring conduct to
rise to the level of denying a person equal access to the recipient's
education program or activity is inconsistent with the language of
Title IX because it is a higher bar than the statute's provision (20
U.S.C. 1681) 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
[[Page 30168]]
to discrimination under any educational program or activity receiving
federal financial assistance.'' Several commenters asserted that
waiting until a complainant's access to education has been denied means
that students must wait for help until harassing or violent behaviors
cause victims to reach a breaking point, making a mockery of
institutional responsibility and the values of an educational
community.
Many commenters believed that the ``effectively denies equal
access'' element supports a culture that conveys acceptance of sexual
harassment of women as long as the victims continue showing up to
school, leaving girls and women in situations that are difficult and
discouraging without recourse until they have lost access altogether.
Many commenters believed that in order to file a Title IX complaint
meeting this element, a victim would need to drop out of school
entirely, fail a class, have a panic attack, be unable to function, or
otherwise provide evidence of denial of access. Commenters argued that
this standard makes no sense because help should be given to
complainants before access has been denied, and will lead to more
victims dropping out of school. One commenter relayed a personal story
of sexual assault and stated that the commenter felt deterred from
reporting the incident because the commenter was unsure whether, under
the NPRM, the university would consider the incident significant enough
to respond, despite the fact that the commenter knew of witnesses who
could attest to the incident, and the commenter had to switch out of a
class to avoid crossing paths with the perpetrator.
Many commenters believed that this element has a perverse effect of
leaving students who demonstrate resilience by managing to attend
classes and participate in educational activities despite being
subjected to harassment and abuse without protection from the
harassment they suffer. A few commenters opposed this element because
it places the focus on a survivor's response to trauma instead of on
the unwelcome conduct itself, when everyone responds differently to
trauma. One commenter recounted an experience of reporting sexual
violence to the police and being told that they did not appear
``traumatized enough'' to be credible; the commenter argued that this
element of the Sec. 106.30 definition leaves too much subjectivity
with school officials to interpret a victim's reaction to trauma.\750\
---------------------------------------------------------------------------
\750\ Commenters cited: Rebecca Campbell, Survivors' Help-
Seeking Experiences With the Legal and Medical Systems, 20 Violence
& Victims 1 (2005), for the proposition that trauma cannot be
identified or understood by looking at someone and everyone responds
to trauma in a different manner.
---------------------------------------------------------------------------
One commenter supported the proposed rules because for the first
time the Department is regulating sexual harassment as a form of sex
discrimination under Title IX, and sexual assault as a form of sexual
harassment, but expressed concern that many commenters interpret the
``effectively denies equal access'' element as requiring students to
drop out of school before action can be taken, amounting to a
``constructive expulsion'' requirement that is much more strict than
what Title IX requires. Many commenters expressed the belief that this
element means harassment is not actionable unless a complainant has
been effectively driven off campus, and most of these commenters urged
the Department to use ``denies or limits'' or simply ``limits'' instead
of ``effectively denies'' to clarify that unwelcome conduct is
actionable when it limits (not only when it has already denied) equal
access to education. Many such commenters noted that the 2001 Guidance
used ``deny or limit'' to recognize that students should not be denied
a remedy for sexual harassment because they continue to come to class
or participate in athletic practice no matter at what personal or
emotional cost. At least one commenter stated that the 2001 Guidance
only prohibits conduct that is sufficiently serious to deny or limit a
student's educational benefits or opportunities from both a subjective
and objective perspective, so if the purpose of the proposed definition
is to minimize its misapplication to low-level situations that remain
protected by the First Amendment (for public institutions) and
principles of academic freedom (for private institutions), that could
be accomplished simply through clarification of the 2001 Guidance
rather than adopting the Davis definition.
Several commenters wondered how a victim is supposed to prove
effective denial, and stated that such a hurdle only perpetuates the
harmful concept of ``the perfect victim'' that already causes too many
victims to question whether their experience has been ``bad enough'' to
be considered valid and worthy of intervention. One commenter asserted
that knowledge about high functioning depression is growing more
common, but a victim who is attending classes and does not appear
significantly affected might believe they cannot even report sexual
harassment and must continue suffering in silence. One commenter
wondered if this element would mean that a third grade student sexually
harassed by a sixth grade student who still attends school but
expresses anxiety to their parent every day, begins bed-wetting, or
cries themselves to sleep at night, has experienced ``effective
denial'' or not. The same commenter further wondered if a ninth grader
joining the wrestling team who gets sexually hazed by teammates has
been ``effectively denied'' access if he quits the team but still
carries on with other school activities. Another commenter stated that
``deny access'' would seem to allow for a professor to make
inappropriate gender related jokes, making students of that gender feel
uncomfortable in the class and potentially perform poorer, although
they still attend class, so thus they are not ``denied,'' but rather
just ``negatively impacted.''
One commenter argued that this element mirrors the statutory
language of ``excluded from participation,'' but neglects the other two
clauses (denial of benefits and subjected to discrimination) in the
Title IX statute. This commenter stated that while this higher standard
might be appropriate under the Supreme Court's rubric for Title IX
private lawsuits, the Department should not reduce its own
administrative authority because sexual harassment can, and does, deny
people educational benefits and opportunities even without excluding
them entirely from access to education. This commenter argued that if
Congress intended for the denial of benefits clause to be as narrow as
the exclusion from participation clause, Congress would not have
bothered using the two phrases separately; rules of statutory
construction mean that Congress does not use words accidentally or
without meaning. The commenter argued that a plain interpretation of
the Title IX statute means that a lower level of denial of benefits
could violate Title IX as much as a higher level of exclusion from
participation. The commenter asserted that this does not mean that a
very minor limitation of access would meet the standard, but some
limitations (short of ``denial'') should meet the standard and must be
covered by Title IX.
One commenter expressed concern over the varied interpretations of
``access'' to educational activities among Federal courts, noting that
some interpret it narrowly (i.e., the ability of a student to enter in
or begin an educational activity) while others interpret it more
broadly (i.e., the ability to enter into an educational activity free
from discriminatory experiences). Another commenter requested
clarification that the Department
[[Page 30169]]
interprets the ``effective denial of equal access'' element as not just
physical inability to attend classes but also where a complainant
experiences negative impacts on learning opportunities. Some commenters
expressed concern that recipients will be confused about whether they
are obligated to intervene if a student skips class to avoid a
harasser, has difficulty focusing in class because of harassment, or
suffers a decline in their grade point average (GPA) due to harassment,
since these consequences have not yet cut off the student's ``access''
to education.
A few commenters expressed concern that this element could have
detrimental effects on international students because they rely on
student visas that require them to meet a certain academic performance,
so waiting until academic performance has suffered may be too late to
help the international student because the student may already have
lost their student visa. At least one commenter argued that this
element is inappropriate in the elementary and secondary school context
because the time-limited nature of education during the developmental
years means that requiring inaction until a student has already lost
educational access impedes basic civil rights.
One commenter wondered if a recipient exercising disciplinary power
over student misconduct that does not affect the complainant's access
to its program or activity, but declining to do so for sexual
harassment, would be making a gender-based exception that constitutes
sex discrimination in violation of Title IX.
Several commenters urged the Department to adopt an alternative
approach adapted from workplace sexual harassment law, under which
unwelcome conduct is actionable where it creates an environment
reasonably perceived (and actually perceived) as hostile and abusive,
altering work conditions, without requiring any showing of a tangible
adverse action or psychological harm.\751\ One such commenter urged the
Department to adopt this ``tried and tested formula'' because the harm
done to a survivor's educational access and performance should be just
one factor in determining whether harassing conduct creates an
environment which would be reasonably perceived as hostile, and no
single factor should be dispositive but rather based on the totality of
all the circumstances.\752\ One commenter suggested replacing
``effectively denies a person's equal access'' with ``effectively bars
a person's access to an educational opportunity or benefit'' because
the former sets too high a standard while the ``effectively bars''
phrase is used in Davis.\753\
---------------------------------------------------------------------------
\751\ Commenters cited: Harris, 510 U.S. at 22.
\752\ Commenters cited: Harris, 510 U.S. at 22-23 (``This is
not, and by its nature cannot be, a mathematically precise test . .
. But we can say that whether an environment is `hostile' or
`abusive' can be determined only by looking at all the circumstances
. . . no single factor is required.'').
\753\ Commenters cited: Davis, 526 U.S. at 640 (``that such an
action will lie only for harassment that is so severe, pervasive,
and objectively offensive that it effectively bars the victim's
access to an educational opportunity or benefit'').
---------------------------------------------------------------------------
A few commenters argued that eliminating hostile environment in its
entirety from analyses of sexual harassment leaves victims without
recourse and reflects the Department's ignorance of the realities of
sexual violence because conduct considered benign when examined in
isolation can be oppressive and limiting when considered in the context
of sexual trauma. One such commenter argued that the decision to
eliminate the concept of ``hostile environment'' without anything in
its place is a callous decision that fundamentally contradicts the
purpose of Title IX. This commenter contended that harassment in the
form of cat-calling, for instance, creates a hostile environment even
without interfering with access to education, and should not be
tolerated.
One commenter stated that the NPRM is inconsistent because at some
points, the Department writes that schools must intervene in harassment
that ``effectively denies a person equal access to the recipient's
education program or activity,'' but at other points, the Department
omits the critical word ``equal'' before ``access.''
Discussion: The Department understands commenters' concerns that
the ``effectively denies a person equal access'' element sets too high
a bar for a sexual harassment complainant to seek assistance from their
school, college, or university. The Department reiterates that this
element does not apply to the first or third prongs of the Sec. 106.30
definition (quid pro quo harassment and Clery Act/VAWA offenses, none
of which need a demonstrated denial of equal access in any particular
situation because the Department agrees with commenters that such acts
inherently jeopardize equal educational access).
The Department appreciates the opportunity to clarify that,
contrary to many commenters' fears and concerns, this element does not
require that a complainant has already suffered loss of education
before being able to report sexual harassment. This element of the
Davis standard formulated in Sec. 106.30 requires that a person's
``equal'' access to education has been denied, not that a person's
total or entire educational access has been denied. This element
identifies severe, pervasive, objectively offensive unwelcome conduct
that deprives the complainant of equal access, measured against the
access of a person who has not been subjected to the sexual harassment.
Therefore, we do not intend for this element to mean that more victims
will withdraw from classes or drop out of school, or that only victims
who do so will have recourse from their schools.
This element is adopted from the Supreme Court's approach in Davis,
where the Supreme Court specifically held that Title IX's prohibition
against exclusion from participation, denial of benefits, and
subjection to discrimination applies to situations ranging from
complete, physical exclusion from a classroom to denial of equal
access.\754\ In line with this approach, the Sec. 106.30 definition
does not apply only when a complainant has been entirely, physically
excluded from educational opportunities but to any situation where the
sexual harassment ``so undermines and detracts from the victims'
educational experience, that the victim-students are effectively denied
equal access to an institution's resources and opportunities.'' \755\
Neither the Supreme Court, nor the final regulations in Sec. 106.30,
requires showing that a complainant dropped out of school, failed a
class, had a panic attack, or otherwise reached a ``breaking point'' in
order to report and receive a recipient's supportive response to sexual
harassment. The Department acknowledges that individuals react to
sexual harassment in a wide variety of ways, and does not interpret the
Davis standard to require certain manifestations of trauma or a
``constructive expulsion.'' Evaluating whether a reasonable person in
the
[[Page 30170]]
complainant's position would deem the alleged harassment to deny a
person ``equal access'' to education protects complainants against
school officials inappropriately judging how a complainant has reacted
to the sexual harassment. The Sec. 106.30 definition 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.
---------------------------------------------------------------------------
\754\ See Davis, 526 U.S. at 651 (``It is not necessary,
however, to show physical exclusion to demonstrate that students
have been deprived by the actions of another student or students of
an educational opportunity on the basis of sex. Rather, a plaintiff
must establish sexual harassment of students that is so severe,
pervasive, and objectively offensive, and that so undermines and
detracts from the victims' educational experience, that the victim-
students are effectively denied equal access to an institution's
resources and opportunities.'') (emphasis added).
\755\ See id. at 650-652 (describing the denial of access
element variously as: ``depriv[ing] the victims of access to the
educational opportunities or benefits provided by the school,''
``effectively den[ying] equal access to an institution's resources
and opportunities'' and ``den[ying] its victims the equal access to
education that Title IX is designed to protect.'') (emphasis added).
---------------------------------------------------------------------------
School officials turning away a complainant by deciding the
complainant was ``not traumatized enough'' would be impermissible under
the final regulations because Sec. 106.30 does not require evidence of
concrete manifestations of the harassment. Instead, this provision
assumes the negative educational impact of quid pro quo harassment and
Clery Act/VAWA offenses included in Sec. 106.30 and evaluates other
sexual harassment based on whether a reasonable person in the
complainant's position would be effectively denied equal access to
education compared to a similarly situated person who is not suffering
the alleged sexual harassment. Thus, contrary to commenters' concerns,
victims do not need to suffer in silence, and do not need to worry
about what types of symptoms of trauma will be ``bad enough'' to ensure
that a recipient responds to their report. Commenters' examples of a
third grader who starts bed-wetting or crying at night due to sexual
harassment, or a high school wrestler who quits the team but carries on
with other school activities following sexual harassment, likely
constitute examples of denial to those complainants of ``equal'' access
to educational opportunities even without constituting a total
exclusion or denial of an education, and the Department reiterates that
no specific type of reaction to the alleged sexual harassment is
necessary to conclude that severe, pervasive, objectively offensive
sexual harassment has denied a complainant ``equal access.''
For reasons described above, the Department believes that adoption
and adaption of the Davis standard better serves both the purposes of
Title IX's non-discrimination mandate and constitutional protections of
free speech and academic freedom, and thus the final regulations retain
the Davis formulation of effective denial of equal access rather than
the language used in Department guidance documents. While commenters
correctly assert that the Department is not required to use the Davis
standard, for the reasons explained in the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, the Department is persuaded that the Supreme Court's
Title IX cases provide the appropriate backdrop for Title IX
enforcement, and the Department has intentionally adapted that
framework for administrative enforcement to provide additional
protections to complainants (and respondents) not required in private
Title IX litigation. With respect to the denial of equal access
element, neither the Davis Court nor the Department's final regulations
require complete exclusion from an education, but rather denial of
``equal'' access. Signs of enduring unequal educational access due to
severe, pervasive, and objectively offensive sexual harassment may
include, as commenters suggest, skipping class to avoid a harasser, a
decline in a student's grade point average, or having difficulty
concentrating in class; however, no concrete injury is required to
conclude that serious harassment would deprive a reasonable person in
the complainant's position of the ability to access the recipient's
education program or activity on an equal basis with persons who are
not suffering such harassment. This clarification addresses the
concerns of some commenters that a rule requiring total denial of
access would harm international students whose student visas may be in
jeopardy if their academic performance suffers, and the similar
concerns from commenters that waiting to help until an elementary
school student has dropped out of school would irreparably damage the
student's educational pathways. For the same reasons, Sec. 106.30 does
not raise the issue identified by a commenter as to whether a school
would be violating Title IX by requiring a student to suffer total
exclusion before responding to sexual harassment as compared to other
types of misconduct.
For reasons described above, the Department is persuaded by Supreme
Court reasoning that different standards for actionable harassment are
appropriate under Title IX (for educational environments) and Title VII
(for the workplace). However, neither law requires ``tangible adverse
action or psychological harm'' before the sexual harassment may be
actionable, as a commenter feared would be required under these final
regulations.
The Department agrees that the Supreme Court used a variety of
phrasing through the majority opinion to describe the ``denial of equal
access'' element. However, the Department does not agree with the
commenter who suggested that using ``effectively bars access to an
educational opportunity or benefit '' instead of ``effectively denies
equal access to an education program or activity'' yields a broader or
better formulation, and in fact, the Department believes that under the
Davis Court's reasoning, denial of ``equal access'' to a recipient's
education program or activity reflects a broad standard that
appropriately captures situations of unequal access due to sex
discrimination, in conformity with Title IX's non-discrimination
mandate, and Sec. 106.30 reflects this standard by using the phrase
``effectively denies a person equal access.''
The Department disputes that Sec. 106.30 eliminates the concept of
hostile environment ``without anything in its place.'' While the
concept of a hostile environment originated under Title VII to describe
sexual harassment creating a hostile or abusive workplace environment
altering the conditions of a complainant's job, when interpreting Title
IX the Supreme Court carefully applied a standard tailored to address
the particular discriminatory ill addressed by Title IX: Denying a
person ``the equal access to education that Title IX is designed to
protect.'' \756\ Contrary to the contention of some commenters that all
unwelcome conduct must be covered by Title IX even if it does not
interfere with education, Title IX is concerned with sex discrimination
in an education program or activity, but as discussed above, does not
stand as a Federal civility code that requires schools, colleges, and
universities to prohibit every instance of unwelcome or undesirable
behavior. The Department acknowledges that the 2001 Guidance and 2017
Q&A use the phrase ``hostile environment'' to describe sexual
harassment that is not quid pro quo harassment \757\ and that these
final regulations depart from those guidance documents by describing
sexual harassment as actionable when it effectively denies a person
equal access to education rather than when the sexual harassment
creates a hostile
[[Page 30171]]
environment. While the two concepts may overlap, for reasons discussed
above, the denial of equal access to education element is more
precisely tailored to serve the purpose of Title IX (which bars
discrimination in education programs or activities) than the hostile
environment concept, which originated to describe the kind of hostile
or abusive workplace environment sexual harassment may create under
Title VII.\758\ Under these final regulations, where sexual harassment
effectively denies a person ``equal access'' to education, recipients
must offer the complainant supportive measures (designed to restore or
preserve the complainant's equal educational access) \759\ and, where a
fair grievance process finds the respondent to be responsible for
sexually harassing the complainant, the recipient must effectively
implement remedies designed to restore or preserve the complainant's
equal educational access.\760\
---------------------------------------------------------------------------
\756\ Id. at 652 (holding schools liable where the sexual
harassment ``denies its victims the equal access to education that
Title IX is designed to protect.'').
\757\ 2001 Guidance at 5 (``By contrast, sexual harassment can
occur that does not explicitly or implicitly condition a decision or
benefit on submission to sexual conduct. Harassment of this type is
generally referred to as hostile environment harassment.''); 2017
Q&A at 1. The withdrawn 2011 Dear Colleague Letter and withdrawn
2014 Q&A similarly relied on a hostile environment theory of sexual
harassment. 2011 Dear Colleague Letter at 15; 2014 Q&A at 1.
\758\ To the extent that the Supreme Court in Davis cited to
Title VII cases as authority for its formulation of the
``effectively denied equal access'' element for actionable sexual
harassment under Title IX, we believe that such citations indicate
that the Title IX focus on ``effectively denied equal access''
element is the educational equivalent of the workplace doctrine of
``hostile environment.'' E.g., Davis, 526 U.S. at 651 (``Rather, a
plaintiff must establish sexual harassment of students that is so
severe, pervasive, and objectively offensive, and that so undermines
and detracts from the victims' educational experience, that the
victim-students are effectively denied equal access to an
institution's resources and opportunities. Cf. Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. at 67.''); id. (``Whether gender-oriented
conduct rises to the level of actionable `harassment' thus `depends
on a constellation of surrounding circumstances, expectations, and
relationships,' Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 82, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998).''). Even
though these final regulations do not rely on a ``hostile
environment'' theory of sexual harassment, a recipient may choose to
deliver special training to a class, disseminate information, or
take other steps that are designed to clearly communicate the
message that the school does not tolerate harassment and will be
responsive to any student who reports sexual harassment, as
described in the 2001 Guidance, so that no person is effectively
denied equal access to education. 2001 Guidance at 16.
\759\ Section 106.44(a) (requiring that with or without a
grievance process, the recipient's response to sexual harassment
must include promptly offering supportive measures to the
complainant); Sec. 106.30 (defining ``supportive measures'' as
individualized services provided without fee or charge to
complainants or respondents, designed to restore or preserve equal
access to education without unreasonably burdening the other party).
\760\ Section 106.45(b)(1)(i) (requiring the recipient to
provide remedies to a complainant where a respondent is found
responsible following a grievance process that complies with Sec.
106.45 and stating that remedies may consist of individualized
services similar to those that meet the definition in Sec. 106.30
of supportive measures except that remedies (unlike supportive
measures) may be punitive or disciplinary against the respondent,
and need not avoid burdening the respondent)); Sec.
106.45(b)(7)(iv) (stating that the Title IX Coordinator is
responsible for the effective implementation of remedies).
---------------------------------------------------------------------------
The Department appreciates commenters' pointing out that the NPRM
inconsistently used the phrases ``equal access'' and ``access'' and has
revised the final regulations to ensure that all provisions referencing
denial of access, or preservation or restoration of access, include the
important modifier ``equal.'' This will ensure that the appropriate
interpretation of this element is better understood by students,
employees, and recipients: That Title IX is concerned with ``equal
access,'' not just total denial of access.
Changes: We have revised several provisions to ensure the word
``equal'' appears before ``access'' (e.g., ``effectively denies equal
access'' or ``restore or preserve equal access'') to mirror the use of
``equal access'' in Sec. 106.30 defining ``sexual harassment,'' so
that the terminology and interpretation is consistent throughout the
final regulations.
Prong (3) Sexual Assault, Dating Violence, Domestic Violence, Stalking
Comments: Some commenters approved of the third prong of the Sec.
106.30 definition's reference to the Clery Act's definition of sexual
assault as part of the overall definition of ``sexual harassment.''
Many commenters supported the reference to ``sexual assault'' but
contended that the third prong of the definition should also reference
the other VAWA crimes included in the Clery Act regulations, namely,
dating violence, domestic violence, and stalking. A few commenters
requested clarification as to whether dating violence, domestic
violence, and stalking would only count as sexual harassment under
Sec. 106.30 if such crimes met the second prong (severe, pervasive,
and objectively offensive), and expressed concern that a single
instance of an offense such as dating violence or domestic violence
might fail to be included because it would not be considered
``pervasive.'' A few commenters asserted that the proposed regulations
would leave dating violence, domestic violence, and stalking in an
educational civil rights gray area. Many commenters urged the
Department to bring the third prong of the Sec. 106.30 definition into
line with the Clery Act, as amended by VAWA, by expressly including
dating violence, domestic violence, and stalking.
Several commenters argued that dating violence, domestic violence,
and stalking are just as serious as sexual harassment and sexual
assault.\761\ A few commenters recounted working with victims where
domestic violence or stalking escalated beyond the point of limiting
educational access even tragically ending up in homicides. A few
commenters noted that dating violence was recently added as a
reportable crime under the Clery Act in part because 90 percent of all
campus rapes occur via date rapes,\762\ and dating violence should be
included in the Sec. 106.30 definition.
---------------------------------------------------------------------------
\761\ Commenters cited, e.g.: National Association of Student
Affairs Administrators in Higher Education (NASPA) & Education
Commission of the States, State Legislative Developments on Campus
Sexual Violence: Issues in the Context of Safety 7-8 (2015); Wendy
Adele Humphrey, ``Let's Talk About Sex'': Legislating and Educating
on the Affirmative Consent Standard, 50 Univ. of S.F. L. Rev. 35,
49, 58-60, 62-64, 71 (2016); Emily A. Robey-Phillips, Federalism in
Campus Sexual Violence: How States Can Protect Their Students When a
Trump Administration Will Not, 29 Yale J. of L. & Feminism 373, 393-
414 (2018).
\762\ Commenters cited: Health Research Funding, 39 Date Rape
Statistics on College Campuses, https://healthresearchfunding.org/39-date-rape-statistics-college-campuses/.
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Some commenters asserted that domestic violence is prevalent among
youth, and that the highest rate of dating violence and domestic
violence against females occurs between the ages of 16-24,\763\
precisely when victims are likely to be in high school and college,
needing Title IX protections. Commenters argued that if a school fails
to properly respond to a student's domestic violence situation, the
student's health and school performance may suffer and even lead to the
victim dropping out of school, and that a significant number of female
homicide victims of college age were killed by an intimate
partner.\764\
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\763\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Factbook: Violence
by Intimates (1998).
\764\ Commenter cited: U.S. Dep't. of Justice, Office of Justice
Programs, Bureau of Justice Statistics, Factbook: Violence by
Intimates (1998); U.S. Dep't. of Justice, Office of Justice
Programs, Bureau of Justice Statistics, Patterns and Trends:
Homicide Trends in the United States, 1980-2008 (Nov. 2011); Katie
J. M. Baker, Domestic Violence on Campus is the Next Big College
Controversy, Buzzfeed News (Jun. 9, 2015).
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Many commenters asserted that stalking presents a unique risk to
the health and safety of college students due to the significant
connection between stalking and intimate partner violence \765\ insofar
as stalking often occurs in the context of dating violence and sexual
violence. Many commenters asserted that stalking is very common on
college campuses and within the college population; persons aged 18-24
[[Page 30172]]
(the average age of most college students) experience the highest rates
of stalking victimization of any age group; \766\ and college-aged
women are stalked at higher rates than the general population and that
one study showed that over 13 percent of college women had experienced
stalking in the academic year prior to the study.\767\ One commenter
cited a study that showed that in ten percent of stalking situations
the victim reported that the stalker committed, or attempted, forced
sexual contact.\768\ At least one commenter cited research showing that
sexual assault perpetrators often employed classic stalking strategies
(e.g., surveillance and information-gathering) to select victims.\769\
A few commenters provided examples of the kind of stalking behaviors
that commonly victimize college students, including following a victim
to and from classes, repeatedly contacting a student despite requests
to cease communication, and threats of self-harm if a student does not
pay attention to the stalker. Several commenters expressed concern that
without express recognition of stalking as a sexual harassment
violation, the discrete incidents involved in a typical stalking
pattern might not meet the Davis standard and thus would not be
reportable under Title IX. One commenter elaborated on an example of
typical stalking behavior that would fall through the cracks of
effective response under the proposed rules, where the stalking
behavior is pervasive but arguably not serious (when each incident is
considered separately) and the complainant declines a no-contact order
because the locations where the complainant encounters the respondent
are places the complainant needs to access to pursue the complainant's
own educational activities. This commenter argued that failure to
address sex-based stalking may have dire consequences; the commenter
stated that several tragic homicides of female students \770\ were
preceded by this fairly standard stalking-turned-violent pattern.
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\765\ Commenters cited: Judith McFarlane et al., Stalking and
Intimate Partner Femicide, 3 Homicide Studies 300 (1999).
\766\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Special Report:
Stalking Victimization in the United States (2009).
\767\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, National Institute of Justice, Research Report:
The Sexual Victimization of College Women (2000).
\768\ Commenters cited: Id.
\769\ Commenters cited: David Lisak & Paul Miller, Repeat Rape
and Multiple Offending Among Undetected Rapists, 17 Violence &
Victims 1 (2002).
\770\ Commenters described three such homicide situations: The
2010 murder of University of Virginia fourth-year student, Yeardley
Love, by her boyfriend who was also a fourth-year student; the 2018
murder of University of Utah student Lauren McCluskey, by her ex-
boyfriend; the 2018 murder of 16 year old Texas high schooler Shana
Fisher--the first victim of the 17 year old shooter who killed ten
students, beginning with Shana who had recently rejected him
romantically.
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Discussion: The Department appreciates commenters' support for
including ``sexual assault'' referenced in the Clery Act as an
independent category of sexual harassment in Sec. 106.30 and we are
persuaded by the many commenters who asserted that the other Clery Act/
VAWA sex-based offenses (dating violence, domestic violence, and
stalking) also should be included in the same category as sexual
assault. Commenters correctly pointed out that without specific
inclusion of dating violence, domestic violence, and stalking in the
third prong of Sec. 106.30, those offenses would need to meet the
Davis standard set forth in the second prong of the Sec. 106.30
definition. While the NPRM assumed that many such instances would meet
the elements of severity and pervasiveness (as well as objective
offensiveness and denial of equal access), commenters reasonably
expressed concerns that these offenses may not always meet the Davis
standard.\771\ The Department agrees with commenters who urged that
because these offenses concern non-expressive, often violent conduct,
even single instances should not be subjected to scrutiny under the
Davis standard. Dating violence, domestic violence, and stalking are
inherently serious sex-based offenses \772\ that risk equal educational
access, and failing to provide redress for even a single incident does,
as commenters assert, present unnecessary risk of allowing sex-based
violence to escalate. The Department is persuaded by commenters'
arguments and data showing that dating violence, domestic violence, and
stalking are prevalent, serious problems affecting students, especially
college-age students. The Department believes that a broad rule
prohibiting those offenses appropriately falls under Title IX's non-
discrimination mandate without raising any First Amendment concerns.
The Department therefore revises the final regulations to include
dating violence, domestic violence, and stalking as defined in the
Clery Act and VAWA.
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\771\ As commenters noted, dating violence and domestic violence
may fail to meet the Davis standard because although a single
instance is severe it may not be pervasive, while a course of
conduct constituting stalking could fail to meet the Davis standard
because the behaviors, while pervasive, may not independently seem
severe.
\772\ Stalking may not always be ``on the basis of sex'' (for
example when a student stalks an athlete due to celebrity worship
rather than sex), but when stalking is ``on the basis of sex'' (for
example, when the stalker desires to date the victim) stalking
constitutes ``sexual harassment'' under Sec. 106.30. Stalking that
does not constitute sexual harassment because it is not ``on the
basis of sex'' may be prohibited and addressed under a recipient's
non-Title IX codes of conduct.
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Changes: We have revised the third prong of the final Sec. 106.30
definition of sexual harassment to add, after sexual assault, dating
violence, domestic violence, and stalking as defined in VAWA.
Comments: One commenter objected to the reference to ``sexual
assault'' in the third prong of the Sec. 106.30 definition by
asserting that the definition seemed to be just for the purpose of
having sexual assault in the proposed regulations without any intent to
enforce it. A few commenters believed that the third prong's reference
to ``sexual assault'' will not prevent sexual assault even though
reported numbers of rapes might decline, because certain situations
would no longer be considered rape.
A few commenters objected to the reference to the Clery Act
definition of ``sexual assault,'' asserting that the definition of
``sexual assault'' is too narrow because it fails to capture sex-based
acts such as administration of a date rape drug, attempted rape, a
respondent forcing a complainant to touch the respondent's genitals,
the touching of a complainant's non-private body part (e.g., face) with
the respondent's genitals, or an unwanted and unconsented-to kiss on
the cheek (even if coupled with forcing apart the complainant's legs).
One commenter believed the definition of sexual assault is too
narrow because it does not include a vast number of ``ambiguous''
sexual assaults; the commenter argued that coercive sexual violence
often includes a layer of guilt-inducing ambiguity that may arise from
explicit or implied threats used by the perpetrator as a means of
compelling nominal (but not genuine) consent. One commenter stated that
from December of 2017 to December of 2018, 2,887 people in the United
States Googled the question ``was I raped?'' and according to the same
data from Google Trends, in the same time span, 2,311 people Googled
``rape definition'' and over the last five years, 10,781 and 12,129
people have searched for the question and definition respectively. This
commenter argued that these numbers reflect a lack of certainty
surrounding what constitutes rape and demonstrate the need for clarity
and better education rather than a vague reference to ``sexual
assault.'' Another commenter stated that sexual assault cases often fit
within a certain ``gray area'' often centered on consent issues, and
that most sexual violence situations are not black and white; the
[[Page 30173]]
commenter opined that Title IX should be available to help complainants
whose experience is ``a little grayer'' because otherwise people will
continue to pressure and coerce partners into having sex that is not
truly consensual, creating more and more trauma.
At least one commenter asserted that historically, courts have
considered conduct that meets any reasonable definition of criminal
sexual assault, including rape, as sex-based harm under Title IX,\773\
and thus a separate reference to ``sexual assault'' in the Sec. 106.30
definition is unnecessary and only serves to blur the distinction
between school-based administrative processes and criminal justice
standards. Several other commenters, by contrast, pointed to at least
one Federal court opinion holding that a rape failed to meet the
``severe and pervasive'' standard in private litigation under Title
IX.\774\
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\773\ Commenters cited: Soper v. Hoben, 195 F.3d 845, 855 (6th
Cir. 1999) (assertion that victim was raped, sexually abused, and
harassed obviously qualifies as severe, pervasive, and objectively
offensive sexual harassment).
\774\ Commenters cited: Ross v. Corp. of Mercer Univ., 506 F.
Supp. 2d 1325, 1358 (M.D. Ga. 2007) (finding that a single instance
of rape was not pervasive under the Davis standard).
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At least one commenter expressed concern that using the Clery Act's
definition of sexual assault (which includes ``fondling'' under the
term ``sexual assault'') would encompass ``butt slaps'' (as
``fondling'') yet this misbehavior occurs with such frequency
especially in elementary and secondary schools that school districts
will be overwhelmed with needing to investigate those incidents under
the strictures of the Title IX grievance process. Another commenter
expressed concern that including sexual assault (particularly fondling)
in the third prong of the Sec. 106.30 definition is too broad, and
wondered whether this definition could encompass innocent play by small
children, such as ``playing doctor.'' This commenter argued that where
the conduct at issue does not bother the participants it cannot create
a subjectively hostile environment or interfere with equal access to an
education, regardless of lack of consent based on being under the age
of majority.\775\
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\775\ Commenters cited: Newman v. Federal Express, 266 F.3d 401
(6th Cir. 2001) (racial harassment claim fails when victim is not
seriously offended); Jadon v. French, 911 P.2d 20, 30-31 (Alaska
1996) (conduct that does not seriously offend the victim does not
create a subjectively hostile environment and thus is not sexually
harassing). Conduct must be not just ``unwelcome,'' Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 67-68 (1986), but also subjectively
hostile and annoying to constitute sexual harassment. This commenter
argued that ``sexual assault'' must include both subjective
unwelcomeness and objective interference with access to education to
be actionable and also cited: Gordon v. England, 612 F. App'x 330
(6th Cir. 2015) (``extreme groping'' did not create an objectively
hostile environment, by itself, and thus did not violate Title VII);
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) (holding
misdemeanor sexual assault involving touching of breast did not
create objectively hostile environment, by itself, and thus did not
violate Title VII).
---------------------------------------------------------------------------
One commenter argued that because the Clery Act definition of
``sexual assault'' includes incest and statutory rape, such a
definition will encompass incidents that are consensual when Title IX
should be focused on discriminatory conduct, which should be restricted
to nonconsensual or unwanted conduct; the commenter asserted that where
a half-brother and half-sister, or a 13 year old and an 18 year old,
engage in consensual sexual activity the Title IX process should not be
used to intervene, even if such conduct may constitute criminal
offenses that can be addressed through a criminal justice system.
Another commenter argued that the inclusion of statutory rape sweeps up
sexual conduct by underage students no matter how consensual, welcome,
and reciprocated the conduct might be, and asserted that this over-
inclusion threatens to turn Title IX into enforcement of high school
and first-year college students through repressive administrative
monitoring of youth sexuality in instances that are not severe, not
pervasive, and do not impede educational access.
One commenter described a particular institution of higher
education's sexual misconduct policy as defining sexual assault broadly
to include ``any other intentional unwanted bodily contact of a sexual
nature,'' a standard the commenter argued is ambiguous and overbroad;
the commenter argued that the final regulations should clarify that
schools cannot apply a definition of ``sexual assault'' that equates
all unwanted touching (such as a kiss on the cheek) with groping or
penetration because it is unfair to treat kissing without verbal
consent the same as a sex crime and, in the long run, makes it less
likely that women will be taken seriously when sex crimes occur. This
commenter also asserted that vague, overbroad definitions of sexual
assault disproportionately harm students of color.\776\
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\776\ Commenters cited: Ben Trachtenberg, How University Title
IX Enforcement and Other Discipline Processes (Probably)
Discriminate Against Minority Students, 18 Nev. L. J. 107 (2017);
Emily Yoffe, The Question of Race in Campus Sexual-Assault Cases: Is
the system biased against men of color?, The Atlantic (September
2017) (noting that male students of color are ``vastly
overrepresented'' in the cases Yoffe has tracked and arguing that as
``the definition of sexual assault used by colleges has become
broader and blurrier, it certainly seems possible that unconscious
biases might tip some women toward viewing a regretted encounter
with a man of a different race as an assault. And as the standards
for proving assault have been lowered, it seems likely that those
same biases, coupled with the lack of resources common among
minority students on campus, might systematically disadvantage men
of color in adjudication, whether or not the encounter was
interracial.''); Janet Halley, Trading the Megaphone for the Gavel
in Title IX Enforcement, 128 Harv. L. Rev. Forum 103, 106-08 (2015)
(``American racial history is laced with vendetta-like scandals in
which black men are accused of sexually assaulting white women''
followed by revelations ``that the accused men were not wrongdoers
after all . . . . morning-after remorse can make sex that seemed
like a good idea at the time look really alarming in retrospect; and
the general social disadvantage that black men continue to carry in
our culture can make it easier for everyone in the adjudicative
process to put the blame on them . . . . Case after Harvard case
that has come to my attention . . . has involved black male
respondents.'').
---------------------------------------------------------------------------
Some commenters believed that the final regulations should include
sexual assault in the definition but should use a definition of sexual
assault different from the proposed rules' reference to ``sexual
assault'' under the Clery Act regulations. One commenter believed that
laypersons reading the regulation should not have to refer to yet
another Federal regulation in order to know the definition of ``sexual
assault.'' Another commenter stated that by including a cross-reference
to the Clery Act regulation, this Title IX regulation could have its
definition of sexual assault changed due to regulatory changes under
the Clery Act, and that sexual assault should be explicitly defined
rather than relying on a cross-reference to a different regulation. One
commenter, supportive of the three-prong definition of sexual
harassment in Sec. 106.30, suggested that the provision should include
a full definition of sexual assault to better clarify prohibited
conduct rather than a cross-reference to the Clery Act.
A few other commenters asserted that the Clery Act definition of
sexual assault poses problems; they argued that reference to the Clery
Act regulations should be replaced by inserting a definition of sexual
assault directly into Sec. 106.30. One such commenter argued that the
Clery Act definition of sexual assault is biased against men because
under the definitions of rape and fondling, a male who performs oral
sex on a female victim likely commits ``rape'' while a female who
performs oral sex on a male victim at most commits ``fondling,'' but
not the more serious-sounding offense of rape.
One commenter proposed an alternate definition of sexual assault
that would define sexual assault by reference to crimes under each
State law as classified under the FBI Uniform Crime
[[Page 30174]]
Reporting Program's (``FBI UCR'') National Incident-Based Reporting
System (NIBRS). This commenter asserted that this alternative
definition of sexual assault would better serve the Department's
purpose because it does not require the Department to issue new
definitions for Title IX purposes of the degree of family connectedness
for incest, the statutory age of consent for statutory rape, consent
and incapacity for consent for rape, and other elements in the listed
sex offenses. This commenter further asserted that the commenter's
alternative definition would not use the definition of rape in the FBI
UCR's Summary Reporting System (SRS), because the FBI has announced
that it is retiring the SRS on January 1, 2021 and will collect crime
data only through NIBRS thereafter.
Another commenter asserted that the reference in Sec. 106.30 to 34
CFR 668.46(a) for a definition of sexual assault fails to provide
meaningful guidance on what conduct recipients must include under Title
IX, because the Clery Act regulation relies on the FBI UCR, which is a
reporting system designed to aggregate crime data across the Nation,
not intended to provide guidance about what conduct is acceptable or
unacceptable for enforcement purposes. Under the Clery Act regulation,
this commenter points out that ``rape'' and ``fondling'' do not define
what consent (or lack of consent) means, and ``fondling'' does not
identify which body parts are considered ``private.'' This commenter
argued that the need for clarity about what constitutes sexual assault
is too important to leave recipients to muddle through vague
definitions, and proposed that the third prong of Sec. 106.30 use the
following alternative definition of sexual assault: the penetration or
touching of another's genitalia, buttocks, anus, breasts, or mouth
without consent; a person acts without consent when, in the context of
all the circumstances, the person should reasonably be aware of a
substantial risk that the other person is not voluntarily and willingly
engaging in the conduct at the time of the conduct; sexual assault must
effectively deny a person equal access to the recipient's education
program or activity.
Discussion: The Department emphasizes that including sexual assault
as a form of sexual harassment is not an empty reference; the
Department will enforce each part of the Sec. 106.30 definition,
including requiring recipients to respond to sexual assault, vigorously
for the benefit of all persons in a recipient's education program or
activity. The Department believes that the Clery Act's reference to
sexual assault is appropriately broad and thus does not agree with the
commenter's contention that the sexual assault reference excludes acts
that should be considered rape or sexual assault.
The Department acknowledges commenters' concerns that not every act
related to or potentially involved in a sexual assault would meet the
Clery Act definition of sexual assault. With respect to violative acts
such as commenters' examples of administration of a date rape drug,
touching a non-private body part with the perpetrator's private body
part, and so forth, such acts constitute criminal acts and/or torts
under State laws and likely constitute separate offenses under
recipients' own codes of conduct. Therefore, such egregious acts can be
addressed even if they do not constitute sexual harassment under Title
IX. With respect to an attempted rape, we define ``sexual assault'' in
Sec. 106.30 by reference to the Clery Act,\777\ which in turn defines
sexual assault by reference to the FBI UCR,\778\ and the FBI has stated
that the offense of rape includes attempts to commit rape.\779\
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\777\ Section 106.30 (defining ``sexual harassment'' to include
``Sexual assault'' as ``defined in 20 U.S.C. 1092(f)(6)(A)(v)'').
\778\ 20 U.S.C. 1092(f)(6)(A)(v) (``The term `sexual assault'
means an offense classified as a forcible or nonforcible sex offense
under the uniform crime reporting system of the Federal Bureau of
Investigation.'').
\779\ U.S. Dep't. of Justice, Federal Bureau of Investigation,
UCR Offense Definitions (with respect to rape, ``Attempts or
assaults to commit rape are also included''), https://ucrdatatool.gov/offenses.cfm.
---------------------------------------------------------------------------
The Department disputes a commenter's contention that the sexual
assault definition in Sec. 106.30 lacks sufficient precision to
capture sexual assault that occurs under what the commenter called
``guilt-inducing ambiguity'' or ``gray areas'' often centered around
whether the complainant genuinely consented or only consented due to
coercion. For reasons explained in the ``Consent'' subsection of the
``Section 106.30 Definitions'' section of this preamble, the Department
intentionally leaves recipients flexibility and discretion to craft
their own definitions of consent (and related terms often used to
describe the absence or negation of consent, such as coercion). The
Department believes that a recipient should select a definition of
sexual consent that best serves the unique needs, values, and
environment of the recipient's own educational community. So long as a
recipient is required to respond to sexual assault (including offenses
such as rape, statutory rape, and fondling, which depend on lack of the
victim's consent), the Department believes that recipients should
retain flexibility in this regard. The Department has revised the final
regulations to state that it will not require recipients to adopt a
particular definition of consent.\780\ With respect to the commenter's
point regarding a lack of certainty about what constitutes rape, the
Department believes that including sexual assault in these Title IX
regulations will contribute to greater societal understanding of what
sexual assault is and why every person should be protected against it.
---------------------------------------------------------------------------
\780\ Section 106.30 (entry for ``consent'').
---------------------------------------------------------------------------
Because Federal courts applying the Davis standard have reached
different conclusions about whether a single rape has constituted
``severe and pervasive'' sexual harassment sufficient to be covered
under Title IX, we are including single instances of sexual assault as
actionable under the Sec. 106.30 definition. We believe that sexual
assault inherently creates the kind of serious, sex-based impediment to
equal access to education that Title IX is designed to prohibit, and
decline to require ``denial of equal access'' as a separate element of
sexual assault.
The Department understands the concerns of some commenters that
including ``fondling'' under the term sexual assault poses a perceived
challenge for recipients, particularly elementary and secondary
schools, where, for instance, ``butt slaps'' may be a common
occurrence. The Department appreciates the opportunity to clarify that
under the Clery Act, fondling is a sex offense defined (by way of
reference to the FBI UCR) as the touching of a person's private body
parts without the consent of the victim for purposes of sexual
gratification. This ``purpose'' requirement separates the sex offense
of fondling from the touching described by commenters as ``children
playing doctor'' or inadvertent contact with a person's buttocks due to
jostling in a crowded elevator, and so forth. Where the touching of a
person's private body part occurs for the purpose of sexual
gratification, that offense warrants inclusion as a sexual assault, and
if the ``butt slaps'' described by one commenter as occurring
frequently in elementary and secondary schools do constitute fondling,
then those elementary and secondary schools must respond to knowledge
of those sex offenses for the protection of students. The definition of
fondling, properly understood, appropriately guides schools, colleges,
and universities to consider fondling as a sex offense under Title IX,
while distinguishing touching
[[Page 30175]]
that does not involve the requisite ``purpose of sexual gratification''
element, which still may be addressed by a recipient outside a Title IX
process. The Department notes that recipients may find useful guidance
in State law criminal court decisions that often recognize the
principle that, with respect to juveniles, a sexualized purpose should
not be ascribed to a respondent without examining the circumstances of
the incident (such as the age and maturity of the parties).\781\ The
Department declines to create an exception for fondling that occurs
where both parties engage in the conduct willingly even though they are
underage, because of an underage party's inability to give legal
consent to sexual activity, and as discussed above the ``for the
purposes of sexual gratification'' element of fondling protects against
treating innocuous, non-sexualized touching between children as sexual
harassment under Title IX.
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\781\ See, e.g., In re K.C., 226 N.C. App. 452, 457 (N.C. App.
2013) (``On the question of sexual purpose, however, this Court has
previously held--in the context of a charge of indecent liberties
between children--that such a purpose does not exist without some
evidence of the child's maturity, intent, experience, or other
factor indicating his purpose in acting[.] . . . Otherwise, sexual
ambitions must not be assigned to a child's actions. . . . The
element of purpose may not be inferred solely from the act itself. .
. . Rather, factors like age disparity, control by the juvenile, the
location and secretive nature of the juvenile's actions, and the
attitude of the juvenile should be taken into account. . . . The
mere act of touching is not enough to show purpose.'') (internal
quotation marks and citations omitted).
---------------------------------------------------------------------------
For similar reasons, the Department declines to exclude incest and
statutory rape from the definition of sexual assault. The Department
understands commenters' concerns, but will not override the established
circumstances under which consent cannot legally be given (e.g., where
a party is under the age of majority) or under which sexual activity is
prohibited based on familial connectedness (e.g., incest). The
Department notes that where sexual activity is not unwelcome, but still
meets a definition of sexual assault in Sec. 106.30, the final
regulations provide flexibility for how such situations may be handled
under Title IX. For instance, not every such situation will result in a
formal complaint requiring the recipient to investigate and adjudicate
the incident; \782\ the recipient has the discretion to facilitate an
informal resolution after a formal complaint is filed; \783\ the final
regulations remove the NPRM's previous mandate that a Title IX
Coordinator must file a formal complaint upon receipt of multiple
reports against the same respondent; \784\ the final regulations allow
a recipient to dismiss a formal complaint where the complainant informs
the Title IX Coordinator in writing that the complainant wishes to
withdraw the formal complaint; \785\ and the final regulations do not
require or prescribe disciplinary sanctions.\786\ Thus, the final
regulations provide numerous avenues to avoid situations where a
recipient is placed in a position of feeling compelled to drag parties
through a grievance process where no party found the underlying
incident unwelcome, offensive, or impeding access to education, and
recipients should not feel incentivized by the final regulations to
become repressive monitors of youth sexuality.\787\
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\782\ Section 106.30 (defining ``formal complaint'' to mean a
document ``filed by a complainant or signed by a Title IX
Coordinator'' and defining ``complainant'' to mean ``an individual
who is alleged to be the victim of conduct that could constitute
sexual harassment''). Situations where an individual does not view
themselves as a ``victim'' likely will not result in the filing of a
formal complaint triggering a Sec. 106.45 grievance process.
\783\ Section 106.45(b)(9) (permitting a recipient to facilitate
informal resolution, with the voluntary written consent of both
parties, of any formal complaint except those alleging that an
employee sexually harassed a student).
\784\ See the ``Proposed Sec. 106.44(b)(2) Reports by Multiple
Complainants of Conduct by Same Respondent [removed in final
regulations]'' subsection of the ``Recipient's Response in Specific
Circumstances'' section of this preamble.
\785\ Section 106.45(b)(3)(ii).
\786\ See the ``Deliberate Indifference'' subsection of the
``Adoption and Adaptation of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble, noting that
the final regulations intentionally refrain from second guessing
recipients' decisions with respect to imposition of disciplinary
sanctions following an accurate, reliable determination reached by
following a Sec. 106.45 grievance process. This leaves recipients
flexibility to decide appropriate sanctions in situations where
behavior constituted sexual harassment under Sec. 106.30 yet did
not subjectively offend or distress the complainant.
\787\ See the ``Formal Complaint'' subsection of the ``Section
106.3 Definitions'' section of this preamble, discussing the reasons
why these final regulations permit a formal complaint (which
triggers a recipient's grievance process) to be filed only by a
complainant (i.e., the alleged victim) or by the Title IX
Coordinator, and explaining that a Title IX Coordinator's decision
to override a complainant's wishes by initiating a grievance process
when the complainant does not desire that action will be evaluated
by whether the Title IX Coordinator's decision was clearly
unreasonable in light of the known circumstances (that is, under the
general deliberate indifference standard described in Sec.
106.44(a)).
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The Department understands a commenter's concern that some
recipients have defined sexual misconduct very broadly, including
labeling a wide range of physical contact made without verbal consent
as ``sexual assault.'' For reasons described above and in the
``Consent'' subsection of the ``Section 106.30 Definitions'' section of
this preamble, the Department declines to require recipients to adopt
particular definitions of consent, and declines to prohibit recipients
from addressing conduct that does not meet the Sec. 106.30 definition
of sexual harassment under non-Title IX codes of conduct. The
Department believes that recipients should retain flexibility to set
standards of conduct for their own educational communities that go
beyond conduct prohibited under Title IX (or, in the case of defining
consent, setting standards for that element of sexual assault). The
Department notes that many commenters submitted information and data
showing that conduct ``less serious'' than that constituting Sec.
106.30 sexual harassment can still have negative impacts on victims,
and can escalate into actionable harassment or assault when left
unaddressed \788\ and therefore recipients should retain discretion to
decide how to address student and employee misconduct that is not
actionable under Title IX. The Department shares commenters' concerns
that vague, ambiguously-worded sexual misconduct policies have resulted
in some respondents being punished unfairly. The Department is equally
concerned that complainants, too, have often been denied opportunity to
understand and participate in Title IX grievance processes to vindicate
instances of sexual violation. These concerns underlie the Sec. 106.45
grievance process prescribed in the final regulations, for the benefit
of each complainant and each respondent, regardless of race or other
demographic characteristics. Thus, even if a recipient chooses a
definition of ``consent'' that results in a broad range of conduct
prohibited as sexual assault, the recipient's students and employees
will be aware of the breadth of conduct encompassed and benefit from
robust procedural protections to further each party's respective views
and positions with respect to particular allegations.
---------------------------------------------------------------------------
\788\ E.g., Rachel E. Gartner & Paul R. Sterzing, Gender
Microaggressions as a Gateway to Sexual Harassment and Sexual
Assault: Expanding the Conceptualization of Youth Sexual Violence,
31 Affilia: J. of Women & Social Work 491 (2016); Dorothy Espelage
et al., Longitudinal Associations Among Bullying, Homophobic
Teasing, and Sexual Violence Perpetration Among Middle School
Students, 30 Journal of Interpersonal Violence 14 (2014); Eduardo A.
Vasquez et al., The sexual objectification of girls and aggression
towards them in gang and non-gang affiliated youth, 23 Psychol.,
Crime & Law 5 (2016); National Academies of Science, Engineering,
and Medicine, Sexual Harassment of Women: Climate, Culture, and
Consequences in Academic Sciences, Engineering, and Medicine
(Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------
The Department appreciates commenters' concerns about including
sexual assault by reference to the Clery
[[Page 30176]]
Act regulations at 34 CFR 668.46(a). Postsecondary institutions are
already familiar with the Clery Act \789\ and the Department's
implementing regulations, and although the Clery Act does not apply to
elementary and secondary schools, requiring schools, colleges, and
universities to reference the same range of sex offenses under both the
Clery Act and Title IX will harmonize compliance obligations under both
statutes (for postsecondary institutions) while providing elementary
and secondary school recipients with a preexisting Federal reference to
sex offenses rather than a new definition created by the Department
solely for Title IX purposes. In response to commenters' concerns that
reference to the Clery Act regulations leaves these final regulations
subject to changes to the Clery Act regulations, the final regulations
now reference sexual assault by citing to the Clery Act statute (and as
to dating violence, domestic violence, and stalking, the VAWA statute
\790\), rather than to the Clery Act regulations. The Clery Act statute
references sex offenses as defined in the FBI UCR,\791\ a national
crime reporting program designed to standardize crime statistics across
jurisdictions. At the same time, this modification preserves the
benefit of harmonizing Clery Act and Title IX obligations that arise
from a recipient's awareness of sex offenses.
---------------------------------------------------------------------------
\789\ The Clery Act applies to institutions of higher education
that receive Federal student financial aid under Title IV of the
Higher Education Act of 1965, as amended; see discussion under the
``Clery Act'' subsection of the ``Miscellaneous'' section of this
preamble.
\790\ VAWA at 34 U.S.C. 12291(a)(10), (a)(8), and (a)(30),
defines dating violence, domestic violence, and stalking,
respectively.
\791\ The Clery Act, 20 U.S.C. 1092(f)(6)(A)(v) defines ``sexual
assault'' to mean an ``offense classified as a forcible or
nonforcible sex offense under the uniform crime reporting system of
the Federal Bureau of Investigation.'' The FBI UCR, in turn,
consists of two crime reporting systems: The Summary Reporting
System (SRS) and the National Incident-Based Reporting System
(NIBRS). U.S. Dep't. of Justice, Criminal Justice Information
Services, SRS to NIBRS: The Path to Better UCR Data (Mar. 28, 2017).
The current Clery Act regulations, 34 CFR 668.46(a), direct
recipients to look to the SRS for a definition of rape and to NIBRS
for a definition of fondling, statutory rape, and incest as the
offenses falling under ``sexual assault.'' The FBI has announced it
will retire the SRS and transition to using only the NIBRS in
January 2021. Federal Bureau of Investigation, Criminal Justice
Information Services, Uniform Crime Reporting (UCR) Program,
National Incident-Based Reporting System (NIBRS), https://www.fbi.gov/services/cjis/ucr/nibrs. NIBRS' forcible and nonforcible
sex offenses consist of: Rape, sodomy, and sexual assault with an
object (as well as fondling, statutory rape, and incest, as noted
above). Thus, reference to the Clery Act will continue to cover the
same range of sex offenses under the FBI UCR regardless of whether
or when the FBI phases out the SRS.
---------------------------------------------------------------------------
The Department disagrees that the Clery Act's definition of sexual
assault is biased or discriminatory against men. Although under the FBI
UCR definitions it is possible that, for example, oral sex performed on
an unconscious woman may be designated as a different offense than oral
sex performed on an unconscious man, the difference is not
discriminatory or unfairly biased against men, because any such
difference results from differentiation between a penetrative versus
non-penetrative act, yet under the FBI UCR both offenses fall under the
term sexual assault, and further, penetrative acts against both men and
women (and touching the genitalia of men, and of women) all fall under
FBI UCR sex offenses. While conduct might be classified differently
based on whether the victim was male or female, such offenses would
fall under the term sexual assault. All the sex offenses designated
under the Clery Act as sexual assault represent serious violations of a
person's bodily and emotional autonomy, regardless of whether a
particular sexual assault is categorized as rape, fondling, or other
forcible or non-forcible sex offense under the FBI UCR.
For similar reasons, the Department declines to adopt the
alternative definitions of sexual assault proposed by commenters. The
Department believes that, with the final regulations' modification to
reference the Clery Act and VAWA statutes rather than solely the Clery
Act regulations, ``sexual assault'' under Sec. 106.30 is appropriately
broad, capturing all conduct falling under forcible and non-forcible
sex offenses determined by reference to the FBI UCR, while facilitating
postsecondary institution recipients' understanding of their
obligations under both the Clery Act and Title IX and providing an
appropriate reference for elementary and secondary schools to protect
students from sex offenses under Title IX.
The Department disagrees that the definitions of rape and fondling
in the FBI UCR are too narrow. The violative sex acts covered by
offenses described in the FBI UCR were designed to cover a broad range
of sexual misconduct regardless of how different jurisdictions have
defined such offenses under State criminal laws,\792\ an approach that
lends itself to the purpose of these final regulations, which is to
ensure that recipients across all jurisdictions include a variety of
sex offenses as discrimination under Title IX.
---------------------------------------------------------------------------
\792\ In explaining one of the two systems used in the FBI UCR,
the FBI has stated: ``The definitions used in the NIBRS [National
Incident-Based Reporting System] must be generic in order not to
exclude varying state statutes relating to the same type of crime.
Accordingly, the offense definitions in the NIBRS are based on
common-law definitions found in Black's Law Dictionary, as well as
those used in the Uniform Crime Reporting Handbook and the NCIC
Uniform Offense Classifications. Since most state statutes are also
based on common-law definitions, even though they may vary as to the
specifics, most should fit into the corresponding NIBRS offense
classifications.'' U.S. Dep't. of Justice, Uniform Crime Reporting
System, National Incident-Based Reporting System (2011), https://ucr.fbi.gov/nibrs/2011/resources/nibrs-offense-definitions.
---------------------------------------------------------------------------
The Department disagrees that including statutory rape and incest
makes the sexual assault category too broad, and declines to adopt the
specific alternative definitions of sexual assault proposed by
commenters. The Department believes that, in response to commenters'
concerns, the final regulations appropriately capture a broad range of
sex offenses referenced in the Clery Act and VAWA (which refer to the
FBI UCR without specifying whether to look to the SRS or NIBRS,
foreclosing any problem resulting from the FBI's transition from the
SRS to the NIBRS system) while leaving recipients the discretion to
select particular definitions of consent (and what constitutes a lack
of consent) that best reflect each recipient's values and community
standards and adopt a broader or narrower definition of, e.g., fondling
by specifying which body parts are considered ``private'' or whether
the touching must occur underneath or over a victim's clothing.
Regardless of how narrowly or broadly a recipient defines ``consent''
with respect to the FBI UCR's categories of forcible and nonforcible
sex offenses, the Department believes that any such offenses would
constitute conduct jeopardizing equal access to education in violation
of Title IX without raising constitutional concerns, and that the Sec.
106.45 grievance process gives complainants and respondents opportunity
to fairly resolve factual allegations of such conduct.
Changes: The third prong of the Sec. 106.30 definition of sexual
harassment now references ``sexual assault'' per the Clery Act at 20
U.S.C. 1092(f)(6)(A)(v) (instead of referencing the Clery Act
regulations at 34 CFR 668.46); and adds reference to VAWA to include
``dating violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic
violence'' as defined in 34 U.S.C. 12291(a)(8), and ``stalking'' as
defined in 34 U.S.C. 12291(a)(30).
Gender-Based Harassment
Comments: A number of commenters discussed issues related to
gender-based harassment, sexual orientation, and gender identity.
[[Page 30177]]
Some commenters expressed the general view that LGBTQ individuals
need to be protected and were concerned that the proposed rules would
make campuses even more unsafe for LGBTQ students and have a negative
impact on addressing issues of gender-based discrimination and
harassment.
Several commenters stated the LGBTQ community experiences sexual
violence at much higher rates.
Some commenters expressed specific concerns about the impact of the
proposed rules, including the definition of sexual harassment, on
transgender individuals.
A few commenters also stated that transgender students should be
treated consistent with their gender identity. Some commenters
specifically asked the Department to maintain protections presumably
found in the withdrawn Letter from James A. Ferg-Cadima, Acting Deputy
Assistant Secretary for Policy, Office for Civil Rights at the
Department of Education regarding transgender students' access to
facilities such as restrooms dated January 7, 2015, and ``Dear
Colleague Letter on Transgender Students'' jointly issued by the Civil
Rights Division of the Department of Justice and the Office for Civil
Rights of the Department of Education, dated May 13, 2016.\793\
---------------------------------------------------------------------------
\793\ See U.S. Department of Education & U.S. Department of
Justice, Dear Colleague Letter (Feb. 22, 2017) (withdrawing
letters), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf.
---------------------------------------------------------------------------
Some commenters expressed concern that the proposed rules promote
heterosexuality as the normal or preferred sexual orientation and
therefore fail to recognize and capture the identities and experiences
of the LGBTQ community and recommended that the Department explicitly
state that Title IX protections apply to members of the LGBTQ
community.
One commenter believed that all public school districts should
adopt and enforce policies stating that harassment for any reason,
including on the basis of gender identity, will not be tolerated and
that appropriate disciplinary measures will be taken and urged the
Department to add language to the proposed rules making clear that such
harassment is within the meaning of Title IX.
Some commenters urged the Department to include specific language
referring to sexual harassment based on gender identity, including
transgender and gender-nonconforming identities or expressions and
expressed concern about the lack of such language in the proposed
rules. Some of these commenters noted that some courts have interpreted
Title IX, Title VII, and similar statutes to prohibit discrimination on
the basis of gender identity and sexual orientation because
discrimination on either of these bases of discrimination is
discrimination on the basis of sex. One commenter acknowledged that
contrary case law exists, but asserted Title IX clearly prohibits
discrimination on the basis of sex stereotyping which underlies
discrimination, harassment, and assaults against LGBTQ people.\794\
---------------------------------------------------------------------------
\794\ Commenters cited, e.g.: R.G. & G.R. Harris Funeral Homes
Inc. v. Equal Employment Opportunity Comm'n, 884 F.3d 560 (6th
Cir.), appeal docketed, No. 18-107 (U.S. August 16, 2019); Zarda v.
Altitude Express, Inc., 883 F.3d 100 (2d Cir.), appeal docketed, No.
17-1623 (U.S. June 1, 2018).
---------------------------------------------------------------------------
On the other hand, one commenter stated that Title IX is about sex
and not gender identity and urged the Department to make clear that
biology, not gender identity, determines the definition of men and
women.
Another commenter asserted that the Department's use of the phrase
``on the basis of sex'' in defining sexual harassment is limiting. This
commenter asserted that the phrase ``on the basis of sex'' minimizes
and confines experiences of gender discrimination and gender-based
violence to a binary understanding by aligning it with sex assigned at
birth.
Another commenter urged the Department to keep transgender males
out of female sports categories as it is unfair to women and girls in
competitions.
One commenter stated that OCR has long understood that gender-based
discrimination, even where discrimination is not sexual in nature,
might also fall under Title IX by creating a hostile environment for
students. The commenter expressed concern that the term gender only
appears once in a footnote in the proposed rules and asked how
students' gender presentation, gender identity, and sexual orientation
can be considered under the proposed rules and whether the Department
made a conscious decision not to include gender and sexual orientation.
Another commenter asked the Department to clarify whether gender-
based harassment is still covered under Title IX and whether incidents
of sexual exploitation are to be included in these grievance
procedures.
Other commenters were generally concerned that the proposed rules
would discourage participation of women and gender nonconforming
students in academia. One commenter asserted that the single greatest
danger to women's health is men. The commenter reminded the Department
that Title IX helps protect women (as well as those who have been
harassed or assaulted) and asked the Department not to endanger women.
Another commenter recommended that the Department add language
stating that sexual harassment is bi-directional (male-to-female and
female-to-male).
Discussion: The Department appreciates the concerns of the
commenters. Prior to this rulemaking, the Department's regulations did
not expressly address sexual harassment. We believe that sexual
harassment is an important issue, meriting regulations with the force
and effect of law rather than mere guidance documents, which cannot
create legally binding obligations.\795\
---------------------------------------------------------------------------
\795\ Perez v. Mortgage Bankers Ass'n, 525 U.S. 92, 96-97
(2015).
---------------------------------------------------------------------------
Title IX, 20 U.S.C. 1681(a), expressly prohibits discrimination
``on the basis of sex,'' which is why the Department incorporates the
phrase ``on the basis of sex'' in the definition of sexual harassment
in Sec. 106.30. The word ``sex'' is undefined in the Title IX statute.
The Department did not propose a definition of ``sex'' in the NPRM and
declines to do so in these final regulations.
The focus of these regulations remains prohibited conduct. For
example, the first prong of the Department's definition of sexual
harassment concerns an employee of the recipient conditioning the
provision of an educational aid, benefit, or service on an individual's
participation in unwelcome sexual conduct, which is commonly referred
to as quid pro quo sexual harassment. Any individual may experience
quid pro quo sexual harassment. The second prong of the Sec. 106.30
definition of sexual harassment involves unwelcome conduct on the basis
of sex determined by a reasonable person to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal
access to the recipient's education program or activity; any individual
may experience this form of harassment, as well. The third prong of the
sexual harassment definition in these final regulations is sexual
assault, dating violence, domestic violence, or stalking on the basis
of sex as defined in the Clery Act and VAWA, respectively, and again,
any individual may be sexually assaulted or experience dating violence,
domestic violence, or stalking on the basis of sex. Thus, any
individual--irrespective of sexual orientation or gender identity--
[[Page 30178]]
may be victimized by the type of conduct defined as sexual harassment
to which a recipient must respond under these final regulations.
Title IX and its implementing regulations include provisions that
presuppose sex as a binary classification, and provisions in the
Department's current regulations, which the Department did not propose
to revise in this rulemaking, reflect this presupposition. For example,
20 U.S.C. 1681(a)(2), which concerns educational institutions
commencing planned changes in admissions, refers to ``an institution
which admits only students of one sex to being an institution which
admits students of both sexes.'' Similarly, 20 U.S.C. 1681(a)(6)(B)
refers to ``men's'' and ``women's'' associations as well as
organizations for ``boys'' and ``girls'' in the context of
organizations ``the membership of which has traditionally been limited
to persons of one sex.'' Likewise, 20 U.S.C. 1681(a)(7)(A) refers to
``boys''' and ``girls''' conferences. Title IX does not prohibit an
educational institution ``from maintaining separate living facilities
for the different sexes'' pursuant to 20 U.S.C. 1686. Additionally, the
Department's current Title IX regulations expressly permit sex-specific
housing in 34 CFR 106.32 (``[h]ousing provided by a recipient to
students of one sex, when compared to that provided to students of the
other sex''), separate intimate facilities on the basis of sex in 34
CFR 106.33 (``separate toilet, locker room, and shower facilities on
the basis of sex'' with references to ``one sex'' and ``the other
sex''), separate physical education classes on the basis of sex in 34
CFR 106.34 (``[t]his section does not prohibit separation of students
by sex within physical education classes or activities during
participation in wrestling, boxing, rugby, ice hockey, football,
basketball, and other sports the purpose or major activity of which
involves bodily contact''), separate human sexuality classes on the
basis of sex in 34 CFR 106.34 (``[c]lasses or portions of classes in
elementary and secondary schools that deal primarily with human
sexuality may be conducted in separate sessions for boys and girls''),
and separate teams on the basis of sex for contact sports in 34 CFR
106.41 (``a recipient may operate or sponsor separate teams for members
of each sex where selection for such teams is based upon competitive
skill or the activity involved is a contact sport''). In promulgating
regulations to implement Title IX, the Department expressly
acknowledged physiological differences between the male and female
sexes. For example, the Department's justification for not allowing
schools to use ``a single standard of measuring skill or progress in
physical education classes . . . [if doing so] has an adverse effect on
members of one sex'' \796\ was that ``if progress is measured by
determining whether an individual can perform twenty-five push-ups, the
standard may be virtually out-of-reach for many more women than men
because of the difference in strength between average persons of each
sex.'' \797\
---------------------------------------------------------------------------
\796\ 34 CFR 106.43.
\797\ U.S. Dep't. of Health, Education, and Welfare, General
Administration, Nondiscrimination on the Basis of Sex in Education
Programs and Activities Receiving or Benefiting from Federal
Financial Assistance, 40 FR 24128, 24132 (June 4, 1975). Through
that rulemaking, the Department promulgated Sec. 86.34(d), which is
substantially similar to the Department's current regulation 34 CFR
106.43.
---------------------------------------------------------------------------
The Department declines to take commenters' suggestions to include
a definition of the word ``sex'' in these final regulations because
defining sex is not necessary to effectuate these final regulations and
has consequences that extend outside the scope of this rulemaking.
These final regulations primarily address a form of sex
discrimination--sexual harassment--that does not depend on whether the
definition of ``sex'' involves solely the person's biological
characteristics (as at least one commenter urged) or whether a person's
``sex'' is defined to include a person's gender identity (as other
commenters urged). Anyone may experience sexual harassment,
irrespective of gender identity or sexual orientation. As explained
above, the Department acknowledged physiological differences based on
biological sex in promulgating regulations to implement Title IX with
respect to physical education. Defining ``sex'' will have an effect on
Title IX regulations that are outside the scope of this rulemaking,
such as regulations regarding discrimination (e.g., different
treatment) on the basis of sex in athletics. The scope of matters
addressed by the final regulations is defined by the subjects presented
in the NPRM, and the NPRM did not propose to define sex. The Department
declines to address that matter in these final regulations. The
Department will continue to look to the Title IX statute and the
Department's Title IX implementing regulations with respect to the
meaning of the word ``sex'' for Title IX purposes.
To address a commenter's assertion that Title IX prohibits sex
stereotyping that underlies discrimination against LGBTQ individuals,
the Department notes that some of the cases the commenter cited are
cases under Title VII and are on appeal before the Supreme Court of the
United States. The most recent position of the United States in these
cases is (1) that the ordinary public meaning of ``sex'' at the time of
Title VII's passage was biological sex and thus the appropriate
construction of the word ``sex'' does not extend to a person's sexual
orientation or transgender status, and (2) that discrimination based on
transgender status does not constitute sex stereotyping but a
transgender plaintiff may use sex stereotyping as evidence to prove a
sex discrimination claim if members of one sex (e.g., males) are
treated less favorably than members of the other sex (e.g.,
females).\798\ Although the U.S. Attorney General and U.S. Solicitor
General interpret the word ``sex'' solely within the context of Title
VII, the current position of the United States may be relevant as to
the public meaning of the word ``sex'' in other contexts as well. As
explained above, the Department does not define ``sex'' in these final
regulations. These final regulations focus on prohibited conduct,
irrespective of a person's sexual orientation or gender identity.
Whether a person has been subjected to the conduct defined in Sec.
106.30 as sexual harassment does not necessarily require reliance on a
sex stereotyping theory. Nothing in these final regulations, or the way
that sexual harassment is defined in Sec. 106.30, precludes a theory
of sex stereotyping from underlying unwelcome conduct on the basis of
sex that constitutes sexual harassment as defined in Sec. 106.30.
---------------------------------------------------------------------------
\798\ See Brief of Respondent Equal Employment Opportunity
Commission at 16, 22-27, 50-53, R.G. & G.R. Harris Funeral Homes
Inc. v. Equal Employment Opportunity Comm'n, 884 F.3d 560 (6th
Cir.), appeal docketed, No. 18-107 (U.S. August 16, 2019), https://www.supremecourt.gov/DocketPDF/18/18-107/112655/20190816163010995_18-107bsUnitedStates.pdf; accord Amicus Curiae
Brief for the United States in Bostock and Zarda, https://www.supremecourt.gov/DocketPDF/17/17-1618/113417/20190823143040818_17-1618bsacUnitedStates.pdf, Bostock v. Clayton
County, Ga., 723 F. App'x 964 (11th Cir.), appeal docketed, No. 17-
1618 (U.S. June 1, 2018); Zarda v. Altitude Express, Inc., 883 F.3d
100 (2d Cir.), appeal docketed, No. 17-1623 (U.S. June 1, 2018); see
also Memorandum from the U.S. Attorney General to the U.S. Attorneys
& Heads of Department Components, ``Revised Treatment of Transgender
Employment Discrimination Claims Under Title VII of the Civil Rights
Act of 1964'' (Oct. 4, 2017) https://www.justice.gov/ag/page/file/1006981/download (``Attorney General's Memorandum'').
---------------------------------------------------------------------------
With respect to sexual harassment as a form of sex discrimination
in these final regulations, the Department's position in these final
regulations
[[Page 30179]]
remains similar to its position in the 2001 Guidance, which provides:
Although Title IX does not prohibit discrimination on the basis of
sexual orientation, sexual harassment directed at gay or lesbian
students that is sufficiently serious to limit or deny a student's
ability to participate in or benefit from the school's program
constitutes sexual harassment prohibited by Title IX under the
circumstances described in this guidance. For example, if a male
student or a group of male students target a gay student for physical
sexual advances, serious enough to deny or limit the victim's ability
to participate in or benefit from the school's program, the school
would need to respond promptly and effectively, as described in this
guidance, just as it would if the victim were heterosexual. On the
other hand, if students heckle another student with comments based on
the student's sexual orientation (e.g., ``gay students are not welcome
at this table in the cafeteria''), but their actions do not involve
conduct of a sexual nature, their actions would not be sexual
harassment covered by Title IX.\799\
---------------------------------------------------------------------------
\799\ 2001 Guidance at 3.
---------------------------------------------------------------------------
. . . [G]ender-based harassment, which may include acts of verbal,
nonverbal, or physical aggression, intimidation, or hostility based on
sex or sex-stereotyping, but not involving conduct of a sexual nature,
is also a form of sex discrimination to which a school must respond[.]
For example, the repeated sabotaging of female graduate students'
laboratory experiments by male students in the class could be the basis
of a violation of Title IX.
These final regulations provide a definition of sexual harassment
that differs in some respects from the definition of sexual harassment
in the 2001 Guidance, as explained in more detail in the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section, the ``Sexual Harassment'' subsection in the
``Section 106.30 Definitions'' section, and throughout this preamble.
These final regulations include sexual harassment as unwelcome conduct
on the basis of sex that a reasonable person would determine is so
severe, pervasive, and objectively offensive that it denies a person
equal educational access; this includes but is not limited to unwelcome
conduct of a sexual nature, and may consist of unwelcome conduct based
on sex or sex stereotyping. The Department will not tolerate sexual
harassment as defined in Sec. 106.30 against any student, including
LGBTQ students.
For similar reasons to those discussed above, the Department
declines to address discrimination on the basis of gender identity or
other issues raised in the Department's 2015 letter regarding
transgender students' access to facilities such as restrooms and the
2016 ``Dear Colleague Letter on Transgender Students.''
These final regulations concern sexual harassment and not the
participation of individuals, including transgender individuals, in
sports or other competitive activities. We do not believe these final
regulations serve to discourage the participation of women in a
recipient's education programs and activities, including sports or
other competitive activities.
These final regulations address sexual exploitation to the extent
that sexual exploitation constitutes sexual harassment as defined in
Sec. 106.30, and the grievance process in Sec. 106.45 applies to all
formal complaints alleging sexual harassment.
Sexual harassment is not limited to being bi-directional (male-to-
female and female-to-male). As explained above, these final regulations
focus on prohibited conduct, irrespective of the identity of the
complainant and respondent. As explained above, any person may
experience sexual harassment as a form of sex discrimination,
irrespective of the identity of the complainant or respondent.
Changes: None.
Comments: One commenter urged the Department to require that all
policies, information, education, training, reporting options, and
adjudication processes be accessible and fair and balanced to all
students regardless of race, ethnicity, disability, sexual orientation,
or other potentially disenfranchising characteristics. One commenter
recommended that the Department remove ``sex discrimination issues''
from the summary section of the preamble because the scope is too
narrow and inconsistent with the spirit of Title IX and discrimination
in higher education extends beyond sex discrimination. This commenter
also stated that the proposed rules refer to recipients'
responsibilities related to actionable harassment under Title IX, but
the commenter suggested that the term discrimination would be more
appropriate because sex- and gender-based harassment is only one form
of discrimination that Title IX prohibits. One commenter stated that if
the scope of the proposed rules must be limited to sexual harassment,
this scope should be clearly stated in the preamble to not give the
impression that other forms of discrimination included in Title IX do
not require due process.
Discussion: Title IX expressly prohibits discrimination on the
basis of sex and not race, disability, or other protected
characteristics, and the Department does not have the legal authority
to promulgate regulations addressing discrimination on the basis of
protected characteristics, other than sex, under Title IX. The
Department enforces other statutes such as Title VI, which prohibits
discrimination on the basis of race, color, and national origin. The
Department's other regulations specifically address discrimination
based on these and other protected characteristics.
These final regulations require that all policies, information,
education, training, reporting options, and adjudication processes be
accessible and fair for all students. For example, any complainant will
be offered supportive measures, even if that person does not wish to
file a formal complaint under Sec. 106.44(a). Any respondent will
receive the due process protections in the Sec. 106.45 grievance
process before the imposition of any disciplinary sanctions for sexual
harassment under Sec. 106.44(a). Additionally, the recipient's non-
discrimination statement, designation of a Title IX Coordinator,
policy, grievance procedures, and training materials should be readily
accessible to all students pursuant to Sec. 106.8 and Sec.
106.45(b)(10)(i)(D).
For the reasons previously explained, the Department does not
define sex in these final regulations, as these final regulations focus
on prohibited conduct, namely sexual harassment as a form of sex
discrimination. As previously explained, the Department's definition of
sexual harassment applies for the protection of any person who
experiences sexual harassment, regardless of sexual orientation or
gender identity.
Although these final regulations constitute the Department's first
promulgation of regulations that address sexual harassment, these final
regulations also make revisions to pre-existing regulations and
regulations such as regulations in subpart A and subpart B of Part 106
that generally address sex discrimination but do not specifically
address sexual harassment. For example, the Department revises Sec.
106.8, which concerns the designation of a Title IX Coordinator who
will address all forms of discrimination on the basis of sex and not
just sexual harassment. The Department clarifies in Sec. 106.8(c) that
a recipient must adopt and publish grievance procedures that provide
for the prompt and equitable
[[Page 30180]]
resolution of student and employee complaints, alleging any action that
would be prohibited by Part 106 of Title 34 of the Code of Federal
Regulations, and also a grievance process that complies with Sec.
106.45 for formal complaints of sexual harassment as defined in Sec.
106.30. Section 106.8(c) thus clarifies that a recipient does not need
to apply or use the grievance process in Sec. 106.45 for complaints
alleging sex discrimination that does not constitute sexual harassment.
Changes: None.
Supportive Measures
Overall Support and Opposition
Comments: Many commenters supported the definition of ``supportive
measures'' in Sec. 106.30 because the provision states that supportive
measures may be offered to complainants and respondents; commenters
asserted that supportive measures should be offered on an equal basis
to all parties, except to the extent public safety concerns would
require different treatment, stressing that respondents deal with their
own strife as a result of going through the Title IX process. These
commenters viewed the Sec. 106.30 definition of supportive measures as
appropriately requiring measures that do not disproportionately punish,
discipline, or unreasonably burden either party. Many commenters
appreciated that the Sec. 106.30 definition of supportive measures
included a list illustrating the range of services that could be
offered to both parties, and several of these commenters specifically
expressed strong support for mutual no-contact orders as opposed to
one-way no-contact orders.
Many commenters opposed the Sec. 106.30 definition of supportive
measures because, while neither party should be presumed to be at fault
before an investigation had been completed commenters argued that this
provision will cause an overall decrease in the availability of support
services and accommodations to victims. Commenters argued that the
requirement that supportive measures be ``non-disciplinary, non-
punitive,'' ``designed [but not required] to restore access,'' and not
unreasonably burdensome to the non-requesting party, significantly
limits the universe of supportive measures schools could offer to
victims by prohibiting any measure reasonably construed as negative
towards a respondent. These commenters believed the supportive measures
definition was too respondent-focused and effectively prioritized the
education of respondents over complainants. Several commenters
identified the clause ``designed to effectively restore or preserve''
and questioned how OCR would review and determine whether a supportive
measure met this requirement. One commenter asserted that supportive
measures designed to restore ``access,'' as opposed to equal access,
contradicted the proposed definition of ``sexual harassment'' in Sec.
106.30 as well as the Supreme Court's holding in Davis because
restoring some access is an incomplete remedy for a denial of equal
access.
Several commenters requested clarification that colleges and
universities have flexibility and discretion to approve or disapprove
requested supportive measures, including one-way no-contact orders,
according to the unique considerations of each situation. Another
commenter argued that Sec. 106.30 should be modified to expressly
state that schedule and housing adjustments, or removing a respondent
from playing on a sports team, do not constitute an unreasonable burden
on the respondent when those measures do not separate the respondent
from academic pursuits. Commenters argued that Sec. 106.30 should
clarify what kind of burdens will be considered ``unreasonable.''
Commenters urged the Department to modify the definition of supportive
measures to require that all such measures be proportional to the
alleged harm and the least burdensome measures that will protect
safety, preserve equal educational access, and deter sexual harassment.
Many commenters suggested that the final regulations should require
schools to implement a process through which the parties can seek and
administrators can consider appropriate supportive measures, and at
least one commenter suggested that a hearing similar to a preliminary
injunction hearing under Federal Rule of Civil Procedure 65 should be
used, particularly in cases where one party seeks the other party's
removal from certain facilities, programs, or activities. At least one
commenter asked the Department to specify that any interim measures
must be lifted if the respondent is found not responsible.
Many commenters requested clarification as to what types of
supportive measures are allowable in the elementary and secondary
school context or requested that the Department expand the supportive
measures safe harbor and definition to apply in the elementary and
secondary school context. Other commenters asserted that there may be a
greater need for supportive measures in cases involving international
students, women in career preparatory classes such as construction,
manufacturing, and wielding, and lower-income students, for whom
dropping out of school could have more drastic and long-lasting
consequences.
Many commenters requested that the Department reconsider or clarify
the requirement in Sec. 106.30 that the Title IX Coordinator is
responsible for effective implementation of supportive measures,
arguing that Title IX Coordinators cannot fulfill all the duties
assigned to them under the proposed rules (especially if a recipient
has only designated one individual as a Title IX Coordinator) and
asserting that the responsibility to implement supportive measures
could be easily delegated to other offices on campus.
Discussion: The Department appreciates commenters' support for the
Sec. 106.30 definition of supportive measures, and we acknowledge
commenters' arguments that the language employed in the proposed
definition of the term ``supportive measures'' is too respondent-
focused or lessens the availability of measures to assist victims. The
Department disagrees that this provision prioritizes the needs of one
party over the other. For example, the Sec. 106.30 definition states
that the individualized services can be offered ``to the complainant or
respondent'' \800\ free of charge, that the services shall not
``unreasonably'' burden either party, and may include services to
protect the safety ``of all parties'' as well as the recipient's
educational environment, or to deter sexual harassment. The Department
disagrees that the requirements for supportive measures to be non-
disciplinary, non-punitive, and not unreasonably burdensome to the
other party indicate a preference for respondents over complainants or
prioritize the education of respondents over that of complainants.
These requirements protect complainants and respondents from the other
party's request for supportive measures that would unreasonably
interfere with either party's educational pursuits. The
[[Page 30181]]
plain language of the Sec. 106.30 definition does not state that a
supportive measure provided to one party cannot impose any burden on
the other party; rather, this provision specifies that the supportive
measures cannot impose an unreasonable burden on the other party. Thus,
the Sec. 106.30 definition of supportive measures permits a wide range
of individualized services intended to meet any of the purposes stated
in that provision (restoring or preserving equal access to education,
protecting safety, deterring sexual harassment).
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\800\ We emphasize that a ``complainant'' is any individual who
has been alleged to be the victim of conduct that could constitute
sexual harassment, and a ``respondent'' is any individual who has
been reported to be the perpetrator of conduct that could constitute
sexual harassment, so a person may be a complainant or a respondent
regardless of whether a formal complaint has been filed or a
grievance process is pending (and irrespective of who reported the
alleged sexual harassment--the alleged victim themselves, or a third
party). See Sec. 106.30 defining ``complainant'' and defining
``respondent.''
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We do not believe that it would be appropriate to specify, list, or
describe which measures do or might constitute ``unreasonable'' burdens
because that would detract from recipients' flexibility to make those
determinations by taking into the account the specific facts and
circumstances and unique needs of the parties in individual
situations.\801\ For similar reasons, we decline to require that
supportive measures be ``proportional to the harm alleged'' and
constitute the ``least burdensome measures'' possible, because we
believe that the Sec. 106.30 definition appropriately allows
recipients to select and implement supportive measures that meet one or
more of the stated purposes (e.g., restoring or preserving equal
access; protecting safety; deterring sexual harassment) within the
stated parameters (e.g., without being disciplinary or punitive,
without unreasonably burdening the other party). The ``alleged harm''
in a situation alleging conduct constituting sexual harassment as
defined in Sec. 106.30 is serious harm and the definition of
supportive measures already accounts for the seriousness of alleged
sexual harassment while effectively ensuring that supportive measures
are not unfair to a respondent; even if a supportive measure
implemented by a recipient arguably was not the ``least burdensome
measure'' possible, in order to qualify as a supportive measure under
Sec. 106.30 the measure cannot punish, discipline, or unreasonably
burden the respondent.
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\801\ The recipient must document the facts or circumstances
that render certain supportive measures appropriate or
inappropriate. Under Sec. 106.45(b)(10)(ii), a recipient must
create and maintain for a period of seven years records of any
actions, including any supportive measures, taken in response to a
report or formal complaint of sexual harassment and must document
the basis for its conclusion that its response was not deliberately
indifferent. Specifically, that provision states that if a recipient
does not provide a complainant with supportive measures, then the
recipient must document the reasons why such a response was not
clearly unreasonable in light of the known circumstances. Thus, if a
recipient determines that a particular supportive measure was not
appropriate even though requested by a complainant, the recipient
must document why the recipient's response to the complainant was
not deliberately indifferent.
---------------------------------------------------------------------------
To the extent that commenters are advocating for wider latitude for
recipients to impose interim suspensions or expulsions of respondents,
the Department believes that without a fair, reliable process the
recipient cannot know whether it has interim-expelled a person who is
actually responsible or not. Where a respondent poses an immediate
threat to the physical health or safety of the complainant (or anyone
else), Sec. 106.44(c) allows emergency removals of respondents prior
to the conclusion of a grievance process (or even where no grievance
process is pending), thus protecting the safety of a recipient's
community where an immediate threat exist. The Department believes that
the Sec. 106.30 definition of ``supportive measures'' in combination
with other provisions in the final regulations results in effective
options for a recipient to support and protect the safety of a
complainant while ensuring that respondents are not prematurely
punished.\802\
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\802\ Section 106.44(c) (governing the emergency removal of a
respondent who poses an immediate threat to any person's physical
health or safety); Sec. 106.44(d) (permitting the placement of non-
student employees on administrative leave during a pending grievance
process).
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In response to commenters' concerns that omission of the word
``equal'' before ``access'' in the Sec. 106.30 definition of
supportive measures creates confusion about whether the purpose of
supportive measures is intended to remediate the same denial of ``equal
access'' referenced in the Sec. 106.30 definition of sexual
harassment, we have added the word ``equal'' before ``access'' in the
definition of supportive measures, and into Sec. 106.45(b)(1)(i) where
similar language is used to refer to remedies. The Department
appreciates the opportunity to clarify that whether or not a recipient
has implemented a supportive measure ``designed to effectively restore
or preserve'' equal access is a fact-specific inquiry that depends on
the particular circumstances surrounding a sexual harassment incident.
Section 106.44(a) requires a recipient to offer supportive measures to
every complainant irrespective of whether a formal complaint is filed,
and if a recipient does not provide a complainant with supportive
measures, then the recipient must document the reasons why such a
response was not clearly unreasonable in light of the known
circumstances under Sec. 106.45(b)(10)(ii).\803\
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\803\ See discussion in the ``Section 106.44(a) Deliberate
Indifference Standard'' subsection of the ``Section 106.44
Recipient's Response to Sexual Harassment, Generally'' section of
this preamble.
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In order to ensure that the definition of supportive measures in
Sec. 106.30 is read broadly we have also revised the wording of this
provision to more clearly state that supportive measures must be
designed to restore or preserve equal access to education without
unreasonably burdening the other party, which may include measures
designed to protect the safety of parties or the educational
environment, or deter sexual harassment. The Department did not wish
for the prior language to be understood restrictively to foreclose, for
example, a supportive measure in the form of an extension of an exam
deadline which helped preserve a complainant's equal access to
education and did not unreasonably burden the respondent but could not
necessarily be considered designed to protect safety or deter sexual
harassment.
The Department was persuaded by the many commenters who requested
that the Department expand provisions that incentivize and encourage
supportive measures. As previously noted, we have revised Sec.
106.44(a) to require recipients to offer supportive measures to
complainants. As explained in the ``Proposed Sec. 106.44(b)(3)
Supportive Measures Safe Harbor in Absence of a Formal Complaint
[removed in final regulations]'' subsection of the ``Recipient's
Response in Specific Circumstances'' subsection of the ``Section 106.44
Recipient's Response to Sexual Harassment, Generally'' section of this
preamble, we have eliminated the proposed safe harbor regarding
supportive measures altogether and, thus, we do not extend this safe
harbor to elementary and secondary schools. As all recipients
(including elementary and secondary school recipients) are now required
to offer complainants supportive measures as part of their non-
deliberately indifference response under Sec. 106.44(a), the proposed
safe harbor regarding supportive measures is unnecessary. The
Department agrees that the need to offer supportive measures in the
absence of, or during the pendency of, an investigation is equally as
important in elementary and secondary schools as in postsecondary
institutions. The final regulations revise the Sec. 106.30 definition
of supportive measures to use the word ``recipient'' instead of
``institution'' to clarify that this definition applies to all
recipients, not only to postsecondary institutions.
[[Page 30182]]
To preserve discretion for recipients, the Department declines to
impose additional suggested changes that would further restrict or
prescribe the supportive measures a recipient may or must offer,
including requiring supportive measures that ``do'' restore or preserve
equal access rather than supportive measures ``designed'' to restore or
preserve equal access. Requiring supportive measures to be ``designed''
for that purpose rather than insisting that such measures actually
accomplish that purpose protects recipients against unfair imposition
of liability where, despite a recipient's implementation of measures
intended to help a party retain equal access to education, underlying
trauma from a sexual harassment incident still results in a party's
inability to participate in an education program or activity. To the
extent that commenters desire for the final regulations to specify that
certain populations (such as international students) may have a greater
need for supportive measures, the Department declines to revise this
provision in that regard because the determination of appropriate
supportive measures in a given situation must be based on the facts and
circumstances of that situation. Supportive measures must be offered to
every complainant as a part of a recipient's response obligations under
Sec. 106.44(a).
The Department declines to include an explicit statement that
schedule and housing adjustments, or removals from sports teams or
extracurricular activities, do not unreasonably burden the respondent
as long as the respondent is not separated from the respondent's
academic pursuits, because determinations about whether an action
``unreasonably burdens'' a party are fact-specific. 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
educational programs that are ``academic'' in nature. On the other
hand, the Department appreciates the opportunity to clarify that,
contrary to some commenters' concerns, schedule and housing adjustments
do not necessarily constitute an ``unreasonable'' burden on a
respondent, and thus the Sec. 106.30 definition of supportive measures
continues to require that recipients consider each set of unique
circumstances to determine what individualized services will meet the
purposes, and conditions, set forth in the definition of supportive
measures.\804\ Removal from sports teams (and similar exclusions from
school-related activities) also require a fact-specific analysis, but
whether the burden is ``unreasonable'' does not depend on whether the
respondent still has access to academic programs; whether a supportive
measure meets the Sec. 106.30 definition also includes analyzing
whether a respondent's access to the array of educational opportunities
and benefits offered by the recipient is unreasonably burdened.
Changing a class schedule, for example, may more often be deemed an
acceptable, reasonable burden than restricting a respondent from
participating on a sports team, holding a student government position,
participating in an extracurricular activity, and so forth.
---------------------------------------------------------------------------
\804\ The 2001 Guidance at 16 takes a similar approach to the
final regulations' approach to supportive measures, by stating that
it ``may be appropriate for a school to take interim measures during
the investigation of a complaint'' and for instance, ``the school
may decide to place the students immediately in separate classes or
in different housing arrangements on a campus, pending the results
of the school's investigation'' or where the alleged harasser is a
teacher ``allowing the student to transfer to a different class may
be appropriate.''
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The final regulations require a recipient to refrain from imposing
disciplinary sanctions or other actions that are not supportive
measures, against a respondent, without following the Sec. 106.45
grievance process, and also require the recipient's grievance process
to describe the range, or list, the disciplinary sanctions that a
recipient might impose following a determination of responsibility, and
describe the range of supportive measures available to complainants and
respondents.\805\ The possible disciplinary sanctions described or
listed by the recipient in its own grievance process therefore
constitute actions that the recipient itself considers ``disciplinary''
and thus would not constitute ``supportive measures'' as defined in
Sec. 106.30. If a recipient has listed ineligibility to play on a
sports team or hold a student government position, for example, as a
possible disciplinary sanction that may be imposed following a
determination of responsibility, then the recipient may not take that
action against a respondent without first following the Sec. 106.45
grievance process. If, on the other hand, the recipient's grievance
process does not describe or list a specific action as a possible
disciplinary sanction that the recipient may impose following a
determination of responsibility, then whether such an action (for
example, ineligibility to play on a sports team or hold a student
government position) may be taken as a supportive measure for a
complainant is determined by whether that the action is not
disciplinary or punitive and does not unreasonably burden the
respondent. Certain actions, such as suspension or expulsion from
enrollment, or termination from employment, are inherently
disciplinary, punitive, and/or unreasonably burdensome and so will not
constitute a ``supportive measure'' whether or not the recipient has
described or listed the action in its grievance process pursuant to
Sec. 106.45(b)(1)(vi).
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\805\ Section 106.44(a); Sec. 106.45(b)(1)(i); Sec.
106.45(b)(1)(vi); Sec. 106.45(b)(1)(ix).
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The Department reiterates that a recipient may remove a respondent
from all or part of a recipient's education program or activity in an
emergency situation pursuant to Sec. 106.44(c) (with or without a
grievance process pending) and may place a non-student employee
respondent on administrative leave during a grievance process, pursuant
to Sec. 106.44(d).\806\ Further, a recipient is obligated to conclude
a grievance process within a reasonably prompt time frame, thus
limiting the duration of time for which supportive measures are serving
to maintain a status quo balancing the rights of both parties to equal
educational access in an interim period while a grievance process is
pending.
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\806\ For further discussion see the ``Additional Rules
Governing Recipients' Responses to Sexual Harassment'' subsection of
the ``Section 106.44 Recipient's Response to Sexual Harassment,
Generally'' section of this preamble.
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With respect to supportive measures in the elementary and secondary
school context, many common actions by school personnel designed to
quickly intervene and correct behavior are not punitive or disciplinary
and thus would not violate the Sec. 106.30 definition of supportive
measures or the provision in Sec. 106.44(a) that prevents a recipient
from taking disciplinary actions or other measures that are ``not
supportive measures'' against a respondent without first following a
grievance process that complies with Sec. 106.45. For example,
educational conversations, sending students to the principal's office,
or changing student seating or class assignments do not inherently
constitute punitive or disciplinary actions and the final regulations
therefore do not preclude teachers or school officials from taking such
actions to maintain order, protect student safety, and counsel students
about inappropriate behavior. By contrast, as discussed above,
expulsions and suspensions would constitute disciplinary sanctions
(and/or constitute punitive or unreasonably burdensome
[[Page 30183]]
actions) that could not be imposed without following a grievance
process that complies with Sec. 106.45. The Department emphasizes that
these final regulations apply to conduct that constitutes sexual
harassment as defined in Sec. 106.30, and not to every instance of
student misbehavior.
These final regulations do not expressly require a recipient to
continue providing supportive measures upon a finding of non-
responsibility, and the Department declines to require recipients to
lift, remove, or cease supportive measures for complainants or
respondents upon a finding of non-responsibility. Recipients retain
discretion as to whether to continue supportive measures after a
determination of non-responsibility. A determination of non-
responsibility does not necessarily mean that the complainant's
allegations were false or unfounded but rather could mean that there
was not sufficient evidence to find the respondent responsible. A
recipient may choose to continue providing supportive measures to a
complainant or a respondent after a determination of non-
responsibility. This is not unfair to either party because by
definition, ``supportive measures'' do not punish or unreasonably
burden the other party, whether the other party is the complainant or
respondent. There may be circumstances where the parties want
supportive measures to remain in place or be altered rather than
removed following a determination of non-responsibility, and the final
regulations leave recipients flexibility to implement or continue
supportive measures for one or both parties in such a situation.
The Department also declines to add an additional requirement that
schools implement a process by which supportive measures are requested
by the parties and granted by recipients, because we wish to leave
recipients flexibility to develop processes consistent with each
recipient's administrative structure rather than dictate to every
recipient how to process requests for supportive measures. Although we
do not dictate a particular process, these final regulations specify in
Sec. 106.44(a) that the Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as
defined in Sec. 106.30, consider the complainant's wishes with respect
to supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain to the complainant the process for filing a formal
complaint. Complainants will know about the possible supportive
measures available to them \807\ and will have the opportunity to
express what they would like in the form of supportive measures, and
the Title IX Coordinator will take into account the complainant's
wishes in determining which supportive measures to offer. The final
regulations do prescribe that a recipient's Title IX Coordinator must
remain responsible for coordinating the effective implementation of
supportive measures, so that the burden of arranging and enforcing the
supportive measures in a given circumstance remains on the recipient,
not on any party. We acknowledge commenters' concerns that these final
regulations place many responsibilities on a Title IX Coordinator, and
a recipient has discretion to designate more than one employee as a
Title IX Coordinator if needed in order to fulfill the recipient's
Title IX obligations.\808\
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\807\ Section 106.45(b)(1)(ix) requires the recipient's
grievance process to describe the range of supportive measures
available to complainants and respondents. Additionally, the Title
IX Coordinator must contact an individual complainant to discuss the
availability of supportive measures, under Sec. 106.44(a).
\808\ See discussion in the ``Section 106.8(a) Designation of
Coordinator'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble.
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With respect for a process to remove a respondent from a
recipient's education program or activity, these final regulations
provide an emergency removal process in Sec. 106.44(c) if there is an
immediate threat to the physical health or safety of any students or
other individuals arising from the allegations of sexual harassment. A
recipient must provide a respondent with notice and an opportunity to
challenge the emergency removal decision immediately following the
removal. Additionally, the grievance process in Sec. 106.45 provides
robust due process protections for both parties, and before imposition
of any disciplinary sanctions or other actions that are not supportive
measures as defined in Sec. 106.30, against a respondent, a recipient
must follow a grievance process that complies with Sec. 106.45.
We acknowledge commenters' concerns regarding the provision in the
Sec. 106.30 definition supportive measures that the Title IX
Coordinator must coordinate the effective implementation of supportive
measures. However, we believe it is important that students know they
can work with the Title IX Coordinator to select and implement
supportive measures rather than leave the burden on students to work
with various other school administrators or offices. The Department
recognizes that many supportive measures involve implementation through
various offices or departments within a school. When supportive
measures are part of a school's Title IX obligations, the Title IX
Coordinator must serve as the point of contact for the affected
students to ensure that the supportive measures are effectively
implemented so that the burden of navigating paperwork or other
administrative requirements within the recipient's own system does not
fall on the student receiving the supportive measures. The Department
recognizes that beyond coordinating and serving as the student's point
of contact, the Title IX Coordinator will often rely on other campus
offices to actually provide the supportive measures sought, and the
Department encourages recipients to consider the variety of ways in
which the recipient can best serve the affected student(s) through
coordination with other offices while ensuring that the burden of
effectively implementing supportive measures remains on the Title IX
Coordinator and not on students.
Changes: We have revised the definition for supportive measures in
Sec. 106.30 to refer to ``recipients'' instead of ``institutions''
which clarifies that the definition of supportive measures is
applicable in the context of elementary and secondary schools as well
as in the context of postsecondary institutions. We have added
``equal'' before ``access'' in the description of supportive measures
designed to restore or preserve equal access to the recipient's
education program or activity. We have revised the second sentence of
this provision to clarify that supportive measures must be designed to
restore or preserve equal access and must not unreasonably burden the
other party, which may include measures also designed to protect safety
or the recipient's educational environment, or deter sexual harassment.
No-Contact Orders
Comments: Several commenters focused on the list of possible
supportive measures included in the definition of supportive measures
in Sec. 106.30 and viewed the express inclusion of mutual no-contact
orders as a general prohibition on one-way no-contact orders, and asked
the Department to clarify whether one-way no-contact orders were
prohibited. Other commenters assumed one-way no-contact orders were
prohibited, and expressed concern that by disallowing one-way no-
contact orders, the onus would be placed on the victim to take extreme
measures to provide for their own accommodations and prevent victims
from getting the support they needed, or would discourage victims
[[Page 30184]]
from reporting in the first place. Many commenters asserted that a
victim would be forced to face or interact with their alleged harasser
in class, in dorms, or elsewhere on campus if one-way no-contact orders
were prohibited. Other commenters argued that a victim would have to
win an administrative proceeding in order to be granted a one-way no-
contact order. Many commenters called for the Department to remove the
``mutual restrictions on contact'' provision from the list entirely
because it is not a victim-focused supportive measure. Additionally,
some commenters expressed the belief that mutual no-contact orders are
not enforceable because it is hard to determine which party has the
burden to comply with the no-contact order if both parties are present
in the same location. A few commenters believed that mutual no-contact
orders would constitute unlawful retaliation against the victim since
such an order would necessarily restrict the victim's own participation
in programs or activities as well as the participation of the
respondent. Some commenters argued that mutual no-contact orders were
contrary to the public policies underlying VAWA and various State laws,
and that mutual no-contact orders are analogous to reciprocal
protective or restraining orders, which have been invalidated by at
least one State Supreme Court.\809\
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\809\ Commenters cited: Bays v. Bays, 779 So.2d 754 (La. 2001).
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Other commenters asked the Department to expand the list in the
Sec. 106.30 definition of supportive measures to include a greater
variety of allowable supportive measures. Some commenters argued that
the list of possible supportive measures only included prospective
measures (that might preserve access going forward) as opposed to
remedial measures (that might restore access that had already been
lost), and argued that the Department should explicitly mention
measures aimed at restoring equal access, such as opportunities to
repeat a class or retake an exam or attaching an addendum to a
transcript to explain a low grade.
Discussion: We acknowledge commenters' concerns related to the
inclusion of mutual no-contact orders on the non-exhaustive list of
possible supportive measures in Sec. 106.30, but the Department
declines to exclude this example from the list of supportive measures.
The list of possible supportive measures included in the Sec. 106.30
definition is illustrative, not exhaustive. The inclusion of ``mutual
restrictions on contact between the parties'' on the illustrative list
of possible supportive measures in Sec. 106.30 does not mean that one-
way no-contact orders are never appropriate. A fact-specific inquiry is
required into whether a carefully crafted no-contact order restricting
the actions of only one party would meet the Sec. 106.30 definition of
supportive measures. For example, if a recipient issues a one-way no-
contact order to help enforce a restraining order, preliminary
injunction, or other order of protection issued by a court, or if a
one-way no-contact order does not unreasonably burden the other party,
then a one-way no-contact order may be appropriate. The Department also
reiterates that sexual harassment allegations presenting a risk to the
physical health or safety of a person may justify emergency removal of
a respondent in accordance with the Sec. 106.44(c) emergency removal
provision, which could include a no-trespass or other no-contact order
issued against a respondent.
The inclusion of mutual no-contact orders on an illustrative list
does not mean the final regulations require complainants to face their
respondents on campus, in classrooms, or in dorms. Rather, the express
inclusion of mutual no-contact orders suggests that recipients can
offer measures--tempered by the requirements that they are not
punitive, disciplinary, or unreasonably burdensome to the other party--
to limit the interactions, communications, or contact, between the
parties. The final regulations do not require recipients to initiate
administrative proceedings (i.e., a grievance process) in order to
determine and implement appropriate supportive measures. Contrary to
the arguments of commenters, the Department believes that mutual no-
contact may constitute reasonable restrictions imposed on both parties,
because under certain circumstances such a measure serves the purposes
of protecting each party's right to pursue educational opportunities,
protecting the safety of all parties, and deterring sexual harassment.
The Department believes that ``mutual restrictions on contact between
the parties'' may in many circumstances provide benefits to the
complainant, for example, where such a mutual no-contact order serves
the interest of protecting safety or deterring sexual harassment by
forbidding communication between the parties, which might not require
either party to change dorm rooms or even re-arrange class schedules.
Further restrictions, such as avoiding physical proximity between the
parties, will require a fact-specific analysis to determine the scope
of a no-contact order that may be appropriate under Sec. 106.30; for
example, where both parties are athletes and sometimes practice on the
same field, consideration must be given to the scope of a no-contact
order that deters sexual harassment, without unreasonably burdening the
other party, with the goal of restricting contact between the parties
without requiring either party to forgo educational activities. It may
be unreasonably burdensome to prevent respondents from attending extra-
curricular activities that a recipient offers as a result of a one-way
no contact order prior to being determined responsible; similarly, it
may be unreasonably burdensome to restrict a complainant from accessing
campus locations in order to prevent contact with the respondent. In
some circumstances, for example, a complainant might be offered a
supportive measure consisting of a mutual no-contact order restricting
either party from communicating with the other (which measure likely
would not unreasonably burden either party). If, however, the
complainant wishes to avoid all physical sightings of a respondent and
not only an order prohibiting communications, if appropriate the
complainant may receive a supportive measure in the form of an
alternate housing assignment (without fee or cost to the complainant).
The Department does not view such a supportive measure in such a
circumstance as unreasonably burdening the complainant, because
alternate supportive measures also would have prevented sexual
harassment (by prohibiting all communication between the parties).
Under Sec. 106.44(a), a Title IX Coordinator must consider a
complainant's wishes with respect to supportive measures, and if a
complainant would like a different housing arrangement as part of a
supportive measure, then a Title IX Coordinator should consider
offering such a supportive measure.
The Department does not believe that ``mutual restrictions on
contact between the parties'' could constitute unlawful retaliation by
restricting the complainant's own participation in certain programs or
activities of the recipient as well as that of the respondent. Such a
supportive measure would simply treat both parties equally, and
``restrictions on contact'' could be limited in scope to prohibiting
communications between the parties,
[[Page 30185]]
which may not affect the complainant's ability to participate in
classes or activities. The Department notes that the Sec. 106.30
definition's requirements that supportive measures be non-disciplinary
and non-punitive apply equally to protect complainants against a
recipient taking action that punishes or sanctions a complainant. In
response to commenters' concerns about complainants being unfairly
punished in the wake of reporting sexual harassment, the Department
added Sec. 106.71 prohibiting retaliation. Actions taken by a
recipient under the guise of ``supportive measures'' that actually have
the purpose and effect of penalizing the complainant for the purpose of
discouraging the complainant from exercising rights under Title IX
would constitute unlawful retaliation.
We also acknowledge the various other suggested modifications to
the list of supportive measures offered by commenters, but we decline
to expand this list. The Department encourages recipients to broadly
consider what measures they can reasonably offer to individual students
to ensure continued equal access to a recipient's education program and
activities for a complainant, irrespective of whether a complainant
files a formal complaint, and for a respondent, when a formal complaint
is filed. The Department has provided a list to illustrate the range of
possible supportive measures, but the list of supportive measures is
not intended to be exhaustive. Nothing in Sec. 106.30 precludes
recipients from considering and providing supportive measures not
listed in the definition, including measures designed to
retrospectively ``restore'' or prospectively ``preserve'' a
complainant's equal educational access. We note that the Sec. 106.30
already includes the example of ``course-related adjustments'' which
could encompass several suggested measures identified by commenters,
such as opportunities to retake classes or exams, or adjusting an
academic transcript.
Changes: None.
Other Language/Terminology Comments
Comments: One commenter expressed concern that the terms
``survivor'' and ``victim'' used in the NPRM to describe a person who
merely alleges something has happened to them are prejudicial and anti-
male. Other commenters asserted that the Department's proposed
regulations are biased in favor of males partly due to the use of
neutral terms such as ``complainant'' and ``respondent'' instead of
``survivor'' or ``perpetrator.'' One commenter suggested that, instead
of using the term ``complainant,'' the final regulations should refer
to ``student survivors'' or ``those who face harassment.'' The
commenter further recommended that the final regulations use the term
``perpetrator'' instead of ``respondent,'' saying that the use of the
term ``respondent'' is confusing, and fails to account for perpetrators
who are never formally investigated, and therefore are never in a
formal respondent role (i.e., because they have not responded to
anything).
Discussion: The Department disagrees that the use of the term
survivor or victim in the NPRM is biased, anti-male, or pro-male. The
term ``survivor'' was used five times in the preamble to refer
generally to individuals who have been victims of sexual harassment.
The Department listened to advocates for these individuals, as we
listened to other stakeholders. The use of the term survivor or victim
in that context takes no position on the veracity of any particular
complainant or respondent, or complainants or respondents in general.
The final regulations are intended to be objective and do not use the
term ``survivor'' or ``victim'' in the regulatory text, instead using
the more neutral terms ``complainant'' and ``respondent.'' The final
regulations are intended to be fair, unbiased, and impartial toward
both complainants and respondents. When a determination of
responsibility is reached against a respondent, the Department's
interest is in requiring remedies for the complainant, to further the
goal of Title IX by providing remedies to victims of sexual harassment
aiming to restore their equal educational access. Although the final
regulations do not need to use the word ``victim,'' once a reliable
outcome has determined that a complainant was victimized by sexual
harassment, the final regulations mandate that remedies be provided to
that complainant precisely because after such a determination has been
made, that complainant has been fairly, reliably shown to have been the
victim of sexual harassment.
Changes: None.
Comments: One commenter expressed concern that the terms used in
the NPRM reveal a clear preference in protecting the interests of a
school and effectively limiting a school's liability rather than
protecting the equal right for all students to have access to higher
education free from discrimination.
Discussion: The Department does not have, nor does the terminology
in the final regulations reflect, any preference for protecting the
interests of a school or effectively limiting a school's liability
rather than protecting the equal right of all students to have access
to higher education free from discrimination. Although the Department
is not required to adopt the deliberate indifference standard
articulated by the Supreme Court, we are persuaded by the policy
rationales relied on by it and believes it is the best policy approach.
As the Court reasoned in Davis, a recipient acts with deliberate
indifference only when it responds to sexual harassment in a manner
that is ``clearly unreasonable in light of the known circumstances.''
\810\ The Department believes this standard holds recipients
accountable without depriving them of legitimate and necessary
flexibility to make disciplinary decisions and to provide supportive
measures that might be necessary in response to sexual harassment.
Moreover, the Department believes that teachers and local school
leaders with unique knowledge of the school climate and student body
are best positioned to make disciplinary decisions; thus, unless the
recipient's response to sexual harassment is clearly unreasonable in
light of known circumstances, the Department will not second guess such
decisions. In addition, the final regulations impose obligations on
recipients that go beyond the deliberate indifference standard as set
forth in Davis; for example, by requiring that recipients' non-
deliberately indifferent response must include offering supportive
measures to a complainant under Sec. 106.44(a). Additionally, as
explained in more detail in the ``Section 106.44(b) Proposed `Safe
Harbors,' generally'' subsection in the ``Recipient's Response in
Specific Circumstances'' section, these final regulations do not
include any of the proposed safe harbors in the NPRM for recipients.
---------------------------------------------------------------------------
\810\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49
(1999).
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter opposed the use of criminal terms since
many of the terms that relate to the findings have legal definitions in
criminal law, for which due process protections already exist, and the
use of such language suggests that colleges do not want the overall
Title IX process to be an educational experience and not a criminal
justice proceeding.
Discussion: The Department disagrees with the commenter's
contention. The Department has in no way implied that these proceedings
are criminal in nature and the final regulations use terms such as
``complainant'' and ``respondent,'' ``decision-maker'' and
``determination
[[Page 30186]]
regarding responsibility'' to describe features of the grievance
process, language intentionally adopted to avoid reference to terms
used in civil courts or criminal proceedings (e.g., plaintiff,
defendant, prosecutor, judge, verdict). In this way, the final
regulations acknowledge that the resolution of allegations of Title IX
sexual harassment in an education program or activity serves a
different purpose and occurs in a different context from a civil or
criminal court. As explained in the ``Role of Due Process in the
Grievance Process'' section of this preamble, the Sec. 106.45
grievance process is rooted in principles of due process to create a
process fair to all parties and likely to result in reliable outcomes,
and while the Department believes that the grievance process is
consistent with constitutional due process, the Sec. 106.45 grievance
process is independent from constitutional due process because it is
designed to effectuate the purposes of Title IX as a civil rights
statute. The Department understands the concerns expressed by some
commenters that colleges want the overall Title IX process to be an
educational experience and that the outcome is administrative and
believes the final regulations prescribe a consistent grievance process
appropriate for administratively resolving allegations of sexual
harassment in an education program or activity.
Changes: None.
Comments: One commenter suggested using the word ``discrimination''
instead of ``harassment'' in places where the NPRM describes actionable
behavior because harassment does not have to occur for there to be
discrimination.
Discussion: The Department declines to adopt the word
``discrimination'' instead of ``harassment'' in these final
regulations. The Department's Title IX regulations already address sex
discrimination, and these final regulations intend to address sexual
harassment as a particular form of sex discrimination under Title IX.
Complaints of sex discrimination that do not constitute sexual
harassment may be made to a recipient for handling under the prompt and
equitable grievance procedures that recipients must adopt under Sec.
106.8(c). When the sex discrimination complained of constitutes sexual
harassment as defined in Sec. 106.30, these final regulations govern
how recipients must respond to that form of sex discrimination.
Changes: None.
Comments: One commenter expressed concern that the NPRM used the
term ``guilt,'' which equates school conduct processes to the court
system and seems contrary to the NPRM's goals of distinguishing between
school conduct processes and the judicial system. The commenter argued
that instead, the final regulations should use the terms ``found
responsible'' and ``not responsible,'' and should only draw comparisons
with civil, rather than criminal, case law.
Discussion: The Department disagrees with the concern that the NPRM
inappropriately used the term ``guilt.'' The word ``guilt'' appears
only in two instances in the NPRM, and neither of those occurrences is
in the text of the proposed regulations. In the first instance, the
NPRM notes that ``Secretary DeVos stated that in endeavoring to find a
`better way forward' that works for all students, `non-negotiable
principles' include the right of every survivor to be taken seriously
and the right of every person accused to know that guilt is not
predetermined.'' \811\ Second, the NPRM states that ``[a] fundamental
notion of a fair proceeding is that a legal system does not prejudge a
person's guilt or liability.'' \812\ In both contexts, the NPRM was
using the term guilt generally to refer to culpability for an offense.
The Department also declines to revise the final regulations to use the
terms ``found responsible'' and ``not responsible'' because it has
already utilized similar language; for example, Sec. 106.45(b)(1)(vi)
uses ``determination of responsibility'' in the context of finding a
respondent responsible and Sec. 106.45(b)(7) employs the term
``determination regarding responsibility'' in the context of a
determination that could either find the respondent responsible or non-
responsible. The NPRM uses the same or similar terms.\813\
---------------------------------------------------------------------------
\811\ 83 FR 61464.
\812\ 83 FR 61473.
\813\ See, e.g., 83 FR 61466, 61470.
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters suggested that the term ``equitable''
should be used instead of ``equal'' because the two terms have
different meanings, and Title IX focuses on educational equity. Without
citing a specific provision, one commenter argued that ``equal'' would
assume that if a translator were provided for one party, a translator
must be provided for the other party.
Discussion: The Department understands commenters' concerns that
``equal'' and ``equitable'' have different implications, and the final
regulations use both terms with such a distinction in mind. Where
parties are given ``equal'' opportunity, for example, both parties must
be treated the same. By contrast, where parties must be treated
``equitably,'' the final regulations explain what equitable means for a
complainant and for a respondent. The Department disagrees that the use
of ``equal'' in these final regulations is inappropriate. The equal
opportunity for both parties to receive a disability accommodation does
not mean that both parties must receive a disability accommodation or
that they must receive the same disability accommodation. Similarly,
both parties may not need a translator, and a recipient need not
provide a translator for a party who does not need one, even if it
provides a translator for the party who needs one.
Changes: None.
Comments: One commenter suggested using the term ``education
program or activity'' instead of ``schools'' to be more consistent with
statute and case law. The commenter asserted that use of the word
``schools'' may limit the ability to investigate issues that arise
during sporting activities, afterschool programs, on field trips, etc.
Discussion: Although the Department declines to remove reference to
``schools,'' the Department provides a definition for ``elementary and
secondary schools'' as well as ``postsecondary institutions'' in Sec.
106.30. The Department believes that it is important to distinguish
between these types of recipients as the type of hearing that a
recipient must provide under Sec. 106.45(b)(6) may be different if the
recipient is an elementary or secondary school as opposed to a
postsecondary institution.
To address the commenter's concerns, the Department notes that
Sec. 106.2(h) provides a definition of ``program or activity'' as all
of the operations of elementary and secondary schools and postsecondary
institutions. Additionally, the Department has revised Sec. 106.44(a)
to specify that for purposes of Sec. Sec. 106.30, 106.44, and 106.45,
an education program or activity includes locations, events, or
circumstances over which the recipient exercised substantial control
over both the respondent and the context in which the harassment
occurs. This definition aligns with the Supreme Court's opinion in
Davis \814\ and clarifies when sporting activities, afterschool
programs, or field trips constitute part of the recipient's education
program or activity. The Department also revised Sec. 106.44(a) to
state that for purposes of Sec. Sec. 106.30, 106.44, and 106.45, an
``education program or activity'' also includes any
[[Page 30187]]
building owned or controlled by a student organization that is
officially recognized by a postsecondary institution. The revisions to
Sec. 106.44(a) to help better define ``education program or activity''
are explained more fully in the ``Section 106.44(a) `education program
or activity' '' subsection of the ``Section 106.44 Recipient's Response
to Sexual Harassment, Generally'' section.
---------------------------------------------------------------------------
\814\ Davis, 526 U.S. at 645.
---------------------------------------------------------------------------
Changes: The Department has revised Sec. 106.44(a) to specify that
an education program or activity includes locations, events, or
circumstances over which the recipient exercised substantial control
over both the respondent and the context in which the harassment
occurs, and also includes any building owned or controlled by a student
organization that is officially recognized by a postsecondary
institution.
Comments: One commenter expressed concern that the NPRM's use of
the term ``students'' is too narrow in light of the language of Title
IX and current Title IX regulations, as well as the Supreme Court's
repeated determinations that Title IX encompasses all individuals
participating in education programs and activities. Another commenter
suggested that the term ``student'' in the NPRM should be replaced with
``person'' consistent with statute and case law and because the term
``student'' may be restrictive because it does not encompass employees,
volunteers, parents, and community members. One commenter expressed
concern that the definition of ``student'' as a person who has gained
admission is problematic because institutions of higher education,
particularly those who do not have open enrollment, typically consider
an applicant a student once they have submitted a deposit, indicating
their acceptance of an admission offer and commitment to attend.
Discussion: The Department disagrees with the commenters who
opposed the use of the term ``students.'' Title IX provides that a
recipient of Federal funding may not discriminate on the basis of sex
in the education program or activity that it operates and extends
protections to any ``person.'' The final regulations similarly use
``person'' or ``individual'' to ensure that the Title IX non-
discrimination mandate applies to anyone in a recipient's education
program or activity. For example, Sec. 106.30 defines sexual
harassment as conduct that deprives ``a person'' of equal access; Sec.
106.30 defines a ``complainant'' as an ``individual'' who is alleged to
be the victim of sexual harassment. 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 non-discrimination mandate
but to require particular actions by the recipient reasonably intended
to benefit students, employees, or both; for example, Sec. 106.8(a)
requires recipients to notify ``students and employees'' of contact
information for the Title IX Coordinator. Where the final regulations
intend to include ``applicants for admission'' in addition to
``students'' the phrase ``applicants for admission'' is used; for
example, Sec. 106.8(b)(2)(ii) precludes recipients from using
publications that state that the recipient treats applicants for
admission (or employment), students, or employees differently on the
basis of sex (unless permitted under Title IX). Both Title IX and
existing Title IX regulations use the term ``student''
ubiquitously.\815\ The existing Title IX regulations, in 34 CFR
106.2(r), define ``student'' as ``a person who has gained admission.''
``Admission'', as defined in 34 CFR 106.2(q), ``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.'' The Department disagrees
with the commenter's concern that the definition of ``student'' as a
person who has gained admission is problematic. The Department does not
believe the term ``student'' should be changed to reflect other persons
who are not enrolled in the recipient's education program or activity.
The term ``student'' as defined in 34 CFR 106.2(r) aligns with the
definition of ``formal complaint'' in Sec. 106.30 that provides at the
time of filing a formal complaint, a complainant must be participating
in or attempting to participate in the education program or activity of
the recipient with which the formal complaint is filed.\816\ A student
who has applied for admission and has been admitted is attempting to
participate in the education program or activity of the recipient.
---------------------------------------------------------------------------
\815\ E.g., 20 U.S.C. 1681(a)(2); 34 CFR 106.36.
\816\ See the ``Formal Complaint'' subsection in the ``Section
106.30 Definitions'' section of this preamble.
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter expressed concern that equating ``trauma-
informed'' and ``impartial'' is a false equivalency that threatens to
undermine the quality and efficacy of the Title IX process. The
commenter argued that ``trauma-informed'' refers to a body of research,
practice, and theory that teaches professionals who interact with
victims to recognize that all individuals process trauma differently,
to understand different responses to trauma, and to recognize ways in
which we can avoid further traumatization of involved parties through
sensitive questioning, mindfulness-based practices, and avoiding
potentially triggering situations such as unnecessarily repetitive
questioning. Further, equating these two terms is dismissive of decades
of research and best practices concerning gender and sexual-based
violence and harassment prevention and response.
Discussion: The Department disagrees that the final regulations
equate ``trauma-informed'' and ``impartial'' in a manner that
undermines the quality and efficacy of the Title IX process. It appears
that the commenter prefers the Department to adopt a trauma-informed
approach as a best practice. The Department understands from personal
anecdotes and research studies that sexual violence is a traumatic
experience for survivors. The Department is aware that the neurobiology
of trauma and the impact of trauma on a survivor's neurobiological
functioning is a developing field of study with application to the way
in which investigators of sexual violence offenses interact with
victims in criminal justice systems and campus sexual misconduct
proceedings.\817\ The final regulations require impartiality on the
part of Title IX personnel (i.e., Title IX Coordinators, investigators,
decision-makers, and persons who facilitate informal resolutions) \818\
to reinforce the truth-seeking purpose of a grievance process. The
Department wishes to emphasize that treating all parties with dignity,
respect, and sensitivity without bias, prejudice, or stereotypes
infecting interactions with parties fosters impartiality and truth-
seeking. While the final regulations do not use the term ``trauma-
informed,'' nothing in the final regulations precludes a recipient from
applying trauma-informed techniques, practices, or approaches so long
as such practices are consistent with the requirements of Sec.
106.45(b)(1)(iii) and other requirements in Sec. 106.45.
---------------------------------------------------------------------------
\817\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed
Investigation Training (Holland & Knight updated July 19, 2019)
(white paper summarizing trauma-informed approaches to sexual
misconduct investigations, identifying scientific and media support
and opposition to such approaches, and cautioning institutions to
apply trauma-informed approaches carefully to ensure impartial
investigations).
\818\
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter requested clarification of the numerous
provisions of the proposed regulations that refer to
[[Page 30188]]
specific time frames, such as ten ``days.'' The commenter suggested
that the Department clarify whether these are ``calendar'' days or
``working'' days.
Discussion: The Department appreciates the commenter's request for
clarification as to how to calculate ``days'' with respect to various
time frames referenced in the proposed regulations and appreciates the
opportunity to clarify that because the Department does not require a
specific method for calculating ``days,'' recipients retain the
flexibility to adopt the method that works best for the recipient's
operations; for example, a recipient could use calendar days, school
days, or business days, or a method the recipient already uses in other
aspects of its operations.
Changes: None.
Comments: One commenter asserted that it is unclear whether Sec.
106.6(d) intended to cover recipients that are not government actors.
The commenter suggested adding ``whether or not that recipient is a
government actor'' after ``recipient.''
Discussion: As explained in the ``Role of Due Process in the
Grievance Process'' section of this preamble, the Department recognizes
that some recipients are State actors with responsibilities to provide
due process of law and other rights to students and employees under the
U.S. Constitution, while other recipients are private institutions that
do not have constitutional obligations to their students and employees.
The final regulations apply to all recipients covered by Title IX
because fair, reliable procedures that best promote the purposes of
Title IX are as important in public schools, colleges, and universities
as in private ones. The grievance process prescribed in the final
regulations is important for effective enforcement of Title IX and is
thus consistent with, but independent of, constitutional due process.
Where enforcement of Title IX's non-discrimination mandate is likely to
present potential intersections with a public recipient's obligation to
respect the constitutional rights of students and employees, the final
regulations caution recipients that nothing in these final regulations
requires a recipient to restrict constitutional rights.\819\ Similarly,
the Department, as an agency of the Federal government, cannot require
private recipients to restrict constitutional rights. The Department
will not require private recipients to abide by restrictions in the
U.S. Constitution that do not apply to them. The Department, as a
Federal agency, however, must interpret and enforce Title IX in a
manner that does not require or cause any recipient, whether public or
private, to restrict or otherwise abridge any person's constitutional
rights.
---------------------------------------------------------------------------
\819\ E.g., Sec. 106.6(d); Sec. 106.44(a) (stating that the
Department may not deem a recipient to have satisfied the
recipient's duty to not be deliberately indifferent based on the
recipient's restriction of rights protected under the U.S.
Constitution, including the First Amendment, Fifth Amendment, and
Fourteenth Amendment).
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter encouraged the Department to explicitly
state that Title IX and the Title IX regulations do not apply to
schools that do not receive Federal financial assistance to help
protect their autonomy and Constitutional rights, which would promote
diversity in education by protecting the autonomy and freedom of
private and religious schools to thrive according to their stated
mission and purpose. The commenter stated that their schools are
committed to providing safe and equal learning opportunities for each
student that they serve and noted that such language has been included
in reauthorizations of the Elementary and Secondary Education Act
(ESEA) and that the Every Student Succeeds Act, the most recent
reauthorization passed in 2015, contains Section 8506 which
specifically states, ``Nothing in this Act shall be construed to affect
any private school that does not receive funds or services under this
Act'' [20 U.S.C. 7886(a)].''
Discussion: The Department does not believe it is necessary to
further explain in the final regulations that Title IX applies only to
recipients of Federal financial assistance; the text of Title IX, 20
U.S.C. 1681, clearly states that the Title IX non-discrimination
mandate applies to education programs or activities that receive
Federal financial assistance, and expressly exempts educational
institutions controlled by religious organizations from compliance with
Title IX to the extent that compliance with Title IX is inconsistent
with the religious tenets of the religious organization even if the
educational institution does receive Federal financial assistance.\820\
Existing Title IX regulations already sufficiently mirror that Title IX
statutory language by defining ``recipient'' \821\ and affirming the
Title IX exemption for educational institutions controlled by religious
organizations.\822\
---------------------------------------------------------------------------
\820\ 20 U.S.C. 1681(a); 20 U.S.C. 1681(a)(3).
\821\ 34 CFR 106.2(i) (defining ``recipient'').
\822\ 34 CFR 106.12(a).
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter stated that the proposed regulations were
not easy to understand because the ``Summary'' section of the NPRM
contained too little information. The commenter asserted that although
the proposed regulations were intended to protect young people, young
people would not be able to understand them. Another commenter opposed
the NPRM because, the commenter asserted, the details were perplexing,
vague, and did not tell in sufficient detail, how the proposed rules
would be implemented in terms of the behavior, conditions, and
situations involved. Another commenter expressed concern that the
``sloppy and biased language'' in the NPRM needed to be corrected,
pointing specifically to the summary comments at 83 FR 61462 and
elsewhere in the NPRM.
Discussion: The Department acknowledges the concern from the
commenter that the proposed regulations are not easy enough to
understand. However, the purpose of the NPRM is to provide a basic
overview of the Department's proposed actions and reasons for the
proposals. The Department believes that the NPRM accomplished this
purpose by providing not only a summary section but also a background
section and specific discussions of each proposed provision.
The Department acknowledges the concern of the commenter that
opposed the NPRM because the commenter believed the language was too
vague and does not provide sufficient detail as to how the proposed
rules would be implemented in specific situations. The Department
believes that both the NPRM, and now these final regulations, strike an
appropriate balance between containing sufficient details as to a
recipient's legal obligations without improperly purporting to specify
outcomes for all scenarios and situations many of which will turn on
particular facts and circumstances. The Department wishes to emphasize
that when determining how to comply with these final regulations,
recipients have flexibility to employ age-appropriate methods, exercise
common sense and good judgment, and take into account the needs of the
parties involved.
The Department disagrees that any of the language in the proposed
rules or final regulations is biased, and notes that the Department's
choice of language throughout the text of the final regulations is
neutral, impartial, and unbiased with respect to complainants and
respondents.
Changes: None.
Comments: One commenter expressed concern that the final
regulations should not emphasize the view that schools are
[[Page 30189]]
in a unique position to make disciplinary decisions based on school
climate because all decisions, including disciplinary decisions, should
be made congruent with the intent and spirit of the proposed rules.
Stating that schools are in a unique position regarding decision making
invites many forms of prejudice and renders decisions less reliable.
Discussion: The Department disagrees with the position that the
final regulations should not emphasize the view that schools are in a
unique position to make disciplinary decisions based on school climate.
The Department disagrees with the commenter's conclusory assertion that
by acknowledging schools are in a unique position to make such
decisions that the Department invites prejudice that renders decisions
less reliable. As the Supreme Court reasoned in Davis, Title IX must be
interpreted in a manner that leaves flexibility in schools'
disciplinary decisions and that does not place courts in the position
of second guessing the disciplinary decisions made by school
administrators.\823\ As a matter of policy, the Department believes
that these same principles should govern administrative enforcement of
Title IX.
---------------------------------------------------------------------------
\823\ Davis, 626 U.S. at 648.
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter suggested including a full list of
stakeholders who were interviewed and involved in the process of
developing the NPRM to establish credibility (with aliases provided to
protect the privacy of individual participants), as well as the meeting
minutes included as an appendix.
Discussion: The Department does not believe it is necessary to
publish a full list of stakeholders who were interviewed and involved
in the process of developing the NPRM to establish credibility or
publish meeting minutes included as an appendix. The Department noted
in the NPRM that it conducted listening sessions and discussions with
stakeholders expressing a variety of positions for and against the
status quo, including advocates for survivors of sexual violence;
advocates for accused students; organizations representing schools and
colleges; scholars and experts in law, psychology, and neuroscience;
and numerous individuals who have experienced school-level Title IX
proceedings as a complainant or respondent; school and college
administrators; child and sex abuse prosecutors.\824\ The Department
believes this level of detail is sufficient to support the Department's
contention that the Department conducted wide outreach in developing
the NPRM.
---------------------------------------------------------------------------
\824\ 83 FR 61463-64.
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter suggested including an index of terms that
define legal terminology, including ``respondeat superior,
``reasonableness standard,'' ``deliberate indifference standard,''
``constructive notice,'' and so forth because the use of legal
terminology throughout these regulations without accompanying
layperson's commentary or clear definition of the terminology applied
throughout the proposed revisions confuse and divert attention from the
actual meaning of the proposed rules.
Discussion: The Department does not believe it is necessary to
include an index of terms that define legal terminology. The Department
has defined key terms as necessary in Sec. 106.30, and Sec. 106.2
also provides relevant definitions. The remainder of the language used
in the final regulations should be interpreted both in the context of
the final regulations and in accordance with its ordinary public
meaning.
The Department agrees that the term ``respondeat superior'' is a
legal term of art that may be confusing in light of the final
regulations' frequent use of the word ``respondent'' which looks very
similar to the word ``respondeat'' as used in the phrase ``respondeat
superior'' in the Sec. 106.30 definition of ``actual knowledge.'' To
address this concern, the Department has revised the definition of
``actual knowledge'' in Sec. 106.30 to use the term ``vicarious
liability'' instead of ``respondeat superior.'' Although ``vicarious
liability'' is a legal term, ``vicarious liability'' more readily
conveys the concept of being liable for the actions or omissions of
another, without causing unnecessary confusion with the word
``respondent.''
Changes: Partly in response to commenters' concerns that the phrase
``respondeat superior'' was not recognizable as a legal term or was too
easily confused with use of the word ``respondent'' throughout the
final regulations, we have revised the definition of ``actual
knowledge'' in Sec. 106.30 by replacing term ``respondeat superior''
with ``vicarious liability.''
Comments: One commenter suggested including support and context for
the Department's contention in the NPRM that the proposed rules will
give sexual harassment complainants greater confidence to report and
expect their school to respond in a meaningful way by separating a
recipient's obligation to respond to a report of sexual harassment from
the recipient's obligation to investigate formal complaints of sexual
harassment; the commenter argued that the NPRM thus implies that either
complainants do not currently have a clear understanding of their Title
IX rights and a school's obligation to respond or that complainants are
under the misconception that all complaints are considered formal
complaints under the current Title IX guidance and regulations.
Discussion: The Department's past guidance required recipients to
always investigate any report of sexual harassment, even when the
complainant only wanted supportive measures and did not want an
investigation, which necessarily results in some intrusion into the
complainant's privacy.\825\ This guidance combined a recipient's
obligation to respond to a report of sexual harassment with the
recipient's obligation to investigate formal complaints of sexual
harassment. This guidance also did not distinguish between an
investigation which resulted in the imposition of disciplinary
sanctions and an inquiry into a report of sexual harassment.\826\ The
Department's past guidance did not specifically provide both parties
the opportunity to know about an investigation and participate in such
an investigation, when the investigation may lead to the imposition of
disciplinary sanctions against the respondent and the provision of
remedies. Through Sec. Sec. 106.44 and 106.45, these final regulations
clarify when a recipient has the affirmative obligation to conduct an
investigation that may lead to the imposition of disciplinary
sanctions, requires the recipient to notify both parties of such an
investigation, and requires the recipient to provide both parties the
opportunity to participate in the process. Irrespective of whether a
recipient conducts an investigation under Sec. 106.45, a recipient may
inquire about a report of sexual harassment and must offer supportive
measures in response to such a report under Sec. 106.44(a). If a
recipient does not provide a complainant with supportive measures, then
the recipient must document the reasons why such a response as not
clearly unreasonable in light of the known circumstances under Sec.
106.45(b)(10)(ii).
---------------------------------------------------------------------------
\825\ 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at
4.
\826\ 2001 Guidance at 13, 15, 18.
---------------------------------------------------------------------------
Under the Department's past guidance, some students did not know
that reporting sexual harassment always would lead to an investigation,
even
[[Page 30190]]
when the student did not want the recipient to investigate. A rigid
requirement such as an investigation in every circumstance may chill
reporting of sexual harassment, which is in part why these final
regulations separate the recipient's obligation to respond to a report
of sexual harassment from the obligation to investigate a formal
complaint of sexual harassment. Under these final regulations, a
student may receive supportive measures irrespective of whether the
student files a formal complaint, which results in an investigation. In
this manner, these final regulations encourage students to report
sexual harassment while allowing them to exercise some control over
their report. If students would like supportive measures but do not
wish to initiate an investigation under Sec. 106.45, they may make a
report of sexual harassment. If students would like supportive measures
and also would like the recipient to initiate an investigation under
Sec. 106.45, they may file a formal complaint.
The Department disagrees with the premise that separating a
recipient's obligation to respond to each known report of sexual
harassment from the recipient's obligation to investigate formal
complaints of sexual harassment implies that all complainants suffer
misconceptions; rather, the Department believes that distinguishing
between a recipient's obligation to respond to a report, on the one
hand, and a recipient's obligation to investigate a formal complaint on
the other hands, provides clarity that benefits complainants,
respondents, and recipients.
Changes: None.
Comments: One commenter suggested adding prevention and community
educational programming as a possible option schools can utilize as one
of the remedies provided following a formal complaint, as well as
adding a requirement of educational outreach and prevention programming
elsewhere within the final regulations.
Discussion: The Department declines to list prevention and
community educational programming as a possible option schools can
utilize as a remedy after the conclusion of a grievance process, or to
add a requirement of educational outreach and prevention programming
elsewhere within the final regulations. The Department notes that
nothing in the final regulations prevents recipients from undertaking
such efforts. With respect to remedies, the final regulations require a
recipient to provide remedies to a complainant where a respondent has
been found responsible, and notes that such remedies may include the
type of individualized services non-exhaustively listed in the Sec.
106.30 definition of ``supportive measures.'' Whether or not the
commenter's understanding of prevention and community education
programming would be part of an appropriate remedy for a complainant,
designed to restore or preserve the complainant's equal access to
education, is a fact-specific matter to be considered by the recipient.
With respect to a general requirement that recipients provide
prevention and community education programming, the final regulations
are focused on governing a recipient's response to sexual harassment
incidents, leaving additional education and prevention efforts within a
recipient's discretion.
Changes: None.
Section 106.44 Recipient's Response to Sexual Harassment, Generally
Section 106.44(a) ``Actual Knowledge''
The Recipient's Self-Interest
Comments: Many commenters expressed concerns about the actual
knowledge requirement in Sec. 106.44(a), citing examples of instances
in which schools sought to avoid addressing sexual harassment and
assault, including high-profile sexual abuse scandals at universities
where some university employees failed to report abuse that was
reported to them. One commenter asserted that schools discourage sexual
harassment and assault reports because the number of reported instances
of sexual violence at an institution is publicly available (which harms
or is perceived to harm the recipient's reputation), and alleged
perpetrators are often prominent members of college communities,
including star athletes, fraternity members, leading actors, and
promising filmmakers. Commenters argued that, by using an actual
knowledge requirement that fails to make employees mandatory reporters,
schools will continue to ignore cases of sexual violence and will
investigate fewer harassment complaints, resulting in less justice and
fewer services for victims of sexual harassment.
Discussion: The Department incorporates here its discussion under
the ``Actual Knowledge'' subsection of the ``Section 106.30
Definitions'' section of this preamble. As discussed in that section,
and in the ``Adoption and Adaption of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble, we believe that
the final regulations appropriately hold recipients liable for
responding to every allegation of sexual harassment of which the
recipient is aware, ensure that elementary and secondary school
students may report to any school employee, and respect the autonomy of
complainants at postsecondary institutions to choose whether, and when,
the complainant desires to report sexual harassment. No recipient may
yield to institutional self-interest by ignoring known allegations of
sexual harassment without violating the recipient's obligation to
promptly respond as set forth in Sec. 106.44(a).
Changes: None.
Burdening the Complainant
Comments: Numerous commenters argued that Sec. 106.44(a) will have
the effect of shifting the burden of each report onto the complainant,
who, in addition to dealing with the harm to their mental health from
harassment or assault, must also bear the responsibility of locating
and reporting to the correct administrator. Several commenters also
voiced concern that Sec. 106.44(a) makes it more difficult for victims
to know how or to whom to report harassment. Other commenters argued
that complainants would be at a loss in instances where the school has
not educated students and staff as to who the Title IX Coordinator is,
where that person can be found, and what that person's responsibilities
are. Several commenters asked what a complainant should do if a
complainant has had a negative experience previously with the Title IX
Coordinator, because the complainant would have no one else to whom to
turn in order to report or file a formal complaint.
Many commenters asserted that Sec. 106.44(a) would chill reports
of sexual harassment and assault. Several commenters stated that 59.3
percent of survivors in one study confided in informal support sources
while across several studies, fewer than one-third of victims reported
to formal sources.\827\ One commenter asserted that research has
consistently reflected that survivors of campus sexual assault are more
likely to disclose to someone with whom they have an existing
relationship rather than a campus administrator. Commenters argued that
fewer reports would reach the Title IX Coordinator, since the Title IX
Coordinator lacks a preexisting personal relationship with survivors.
Several commenters asserted that most school personnel do not know who
the Title IX Coordinator is, and that these employees will therefore be
unable to
[[Page 30191]]
help complainants find the Title IX Coordinator.
---------------------------------------------------------------------------
\827\ Commenters cited: Charlotte Pierce-Baker, Surviving the
silence: Black women's stories of rape (W.W. Norton 1998); Patricia
A. Washington, Disclosure Patterns of Black Female Sexual Assault
Survivors, 7 Violence Against Women 11 (2001).
---------------------------------------------------------------------------
Discussion: The Department incorporates here its discussion under
the ``Actual Knowledge'' subsection of the ``Section 106.30
Definitions'' section of this preamble. As discussed in that section,
and in the ``Adoption and Adaption of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble, we believe that
the definition of actual knowledge in these final regulations has been
revised to appropriately trigger a recipient's response obligations by
notice to any elementary and secondary school employee, to any
recipient's Title IX Coordinator, and to any official with authority to
institute corrective measures on the recipient's behalf. The Department
believes that respecting a complainant's autonomy is an important,
desirable goal and that allowing complainants to discuss or disclose a
sexual harassment experience with employees of postsecondary
institutions without such confidential conversations automatically
triggering the involvement of the recipient's Title IX office will give
complainants in postsecondary institutions greater control and autonomy
over the reporting process. The final regulations place the burden on
recipients to ensure that all students and employees (as well as
parents of elementary and secondary school students, and others) are
notified of contact information for the Title IX Coordinator, so that
when a complainant chooses to report, the complainant may easily locate
the Title IX Coordinator's office location, telephone number, and email
address, and report using any of those methods, or any other means
resulting in the Title IX Coordinator receiving the person's verbal or
written report. Nothing in the final regulations precludes a recipient,
including a postsecondary institution, from instructing any or all of
its employees to report sexual harassment disclosures and reports to
the Title IX Coordinator, if the recipient believes that such a
universal mandatory reporting system best serves the recipient's
student and employee population. However, universal mandatory reporting
systems have led to the unintended consequence of reducing options for
complainants at postsecondary institutions to discuss sexual harassment
experiences confidentially with trusted employees,\828\ and the final
regulations therefore do not impose a universal mandatory reporting
system in the postsecondary institution context.
---------------------------------------------------------------------------
\828\ E.g., Carmel Deamicis, Which Matters More: Reporting
Assault or Respecting a Victim's Wishes?, The Atlantic (May 20,
2013); Allie Grasgreen, Mandatory Reporting Perils, Inside Higher Ed
(Aug. 30, 2013).
---------------------------------------------------------------------------
Changes: None.
Elementary and Secondary Schools
Comments: Many commenters stated that the actual knowledge
requirement is inappropriate for elementary and secondary school
students because, from a young child's perspective, there is no
distinction between a teacher, teacher's aide, bus driver, cafeteria
worker, school resource officer, or maintenance staff person; to a
young child, they are all grown-ups. Commenters asserted that this is
particularly true for adults such as bus drivers and school resource
officers, who can take corrective measures (kicking a student off the
bus, for example) but not necessarily ``on behalf of'' the school.
Several commenters stated that often a peer seeking help for a friend
brings an issue of sexual harassment or assault to the attention of
teachers or other school personnel, and commenters asserted that these
allegations should be formally addressed by the school. Numerous
commenters asserted that all school employees, not just teachers,
should be responsible employees. By ensuring that a student can confide
in counselors, aides, and coaches, commenters believed that students
would be more likely to speak up and receive benefits to which they are
entitled under Title IX. Commenters asserted that the proposed rules
would conflict with other mandatory reporting requirements; for
example, State laws requiring all school staff to notify law
enforcement or child welfare agencies of child abuse. Another commenter
stated that, by limiting the definition of complainant to only ``the
victim,'' the proposed regulations would not allow for parents to file
complaints on behalf of their children, and would not contemplate a
witness to sexual harassment making a complaint. One commenter asserted
that the actual knowledge requirement may be in tension with the Every
Student Succeeds Act (ESSA); the commenter asserted that under ESSA, a
school district with probable cause to believe a teacher engaged in
sexual misconduct is prohibited from helping that teacher from getting
a new job yet, the commenter argued, under the proposed rules the
school district would not need to take any action to address the
teacher's sexual misconduct absent a formal complaint.
Discussion: The Department incorporates here its discussion under
the ``Actual Knowledge'' subsection of the ``Section 106.30
Definitions'' section of this preamble. As discussed in that section,
and in the ``Adoption and Adaption of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble, we believe that
the final regulations appropriately hold recipients liable for
responding to every allegation of sexual harassment of which the
recipient is aware, ensure that elementary and secondary school
students may report to any school employee, and ensure that every
recipient's educational community understands that any person may
report sexual harassment (whether they are the victim, or a witness, or
any other third party), triggering the recipient's obligation to
promptly respond. As discussed in the ``Complainant'' subsection of the
``Section 106.30 Definitions'' section of this preamble, we have
revised the definition of ``complainant'' to remove the inference that
the alleged victim themselves must be the same person who reports the
sexual harassment. Upon notice that any person has allegedly been
victimized by conduct that could constitute sexual harassment as
defined in Sec. 106.30, a recipient must respond, including by
promptly offering supporting measures to the alleged victim (i.e., the
complainant).
The final regulations do not contravene or alter any Federal,
State, or local requirements regarding other mandatory reporting
obligations that school employees have. Those obligations are distinct
from the obligations in these final regulations.
The Department acknowledges that the Elementary and Secondary
Education Act of 1965 (ESEA), as amended by the Every Student Succeeds
Act (ESSA), may require a recipient subject to ESEA to take certain
steps with respect to an employee who has been accused of sexual
misconduct when a recipient has probable cause to believe the employee
engaged in sexual misconduct.\829\ We do not believe that the actual
knowledge requirement in these final regulations is in tension with
ESSA. The final regulations define actual knowledge to include notice
of allegations of sexual harassment; a recipient cannot wait to respond
to sexual harassment allegations until the recipient has probable cause
that the sexual harassment occurred. Under revised Sec. 106.44(a) the
recipient's prompt response to allegations of sexual
[[Page 30192]]
harassment must include offering the complainant supportive measures
irrespective of whether the complainant files, or the Title IX
Coordinator signs, a formal complaint. A recipient's obligations under
ESSA may factor into a Title IX Coordinator's decision to sign a formal
complaint initiating a grievance process against an employee-
respondent, even when the complainant (i.e., the alleged victim) does
not wish to file a formal complaint, if, for example, the recipient
wishes to investigate allegations in order to determine whether the
recipient has probable cause of employee sexual misconduct that affect
the recipient's ESSA obligations.
---------------------------------------------------------------------------
\829\ E.g., https://www2.ed.gov/policy/elsec/leg/essa/section8546dearcolleagueletter.pdf.
---------------------------------------------------------------------------
Changes: None.
Confusion for Employees
Comments: Numerous commenters expressed concern that resident
assistants or resident advisors, professors, and coaches may not know
how to respond to complainants appropriately if the proposed rules
allow postsecondary institution employees to have discretion over
whether to report sexual harassment to the Title IX Coordinator.
Several commenters asked the Department to specify that all schools
should be responsible for educating all employees about a variety of
procedures for handling sexual harassment and violence. Another
commenter suggested that deans, directors, department heads, or any
supervisory employees should be held individually liable for having
actual knowledge of a report of sexual misconduct. One commenter
asserted that a greater number of employees should be required to
inform students of their right to file a formal complaint and to obtain
supportive measures. One commenter stated that schools following the
proposed rules might be sued for inadequate reporting policies, since a
recipient's failure to tell its employees to respond appropriately to
disclosures arguably amounts to an intentional decision not to respond
to third-party discrimination.
Discussion: The Department incorporates here its discussion under
the ``Actual Knowledge'' subsection of the ``Section 106.30
Definitions'' section of this preamble. As discussed in that section,
and in the ``Adoption and Adaption of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble, the Department
agrees with commenters' concerns that a wider pool of trusted adults in
elementary and secondary schools should trigger a recipient's
obligations, and, thus, the final regulations expand the definition of
actual knowledge to include notice to any employee of an elementary and
secondary school. However, for reasons discussed in the aforementioned
sections of this preamble, the Department disagrees that the pool of
postsecondary institution employees to whom notice charges the
recipient with actual knowledge needs to be expanded beyond the Title
IX Coordinator and officials with authority to institute corrective
measures on the recipient's behalf.
The Department disagrees that these final regulations increase
liability for recipients with respect to inadequate reporting policies.
These final regulations require recipients to respond to sexual
harassment, or allegations of sexual harassment, when the recipient has
actual knowledge, defined in part to include notice to an official with
authority to institute corrective measures on behalf of the recipient.
This requirement, and definition, are also used by Federal courts in
applying the Gebser/Davis framework in private Title IX lawsuits.\830\
These final regulations go beyond the Gebser/Davis framework by
requiring recipients to have in place clear, accessible reporting
options, and requiring recipients to notify its educational community
of those reporting options. The recipient's educational community must
be notified about how to report sexual harassment in person, by mail,
telephone, or email, and the final regulations specify that any person
may report sexual harassment (whether the person reporting is the
alleged victim themselves or any third party).
---------------------------------------------------------------------------
\830\ E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 290 (1998).
---------------------------------------------------------------------------
Changes: None.
Intersection Between Actual Knowledge and Deliberate Indifference
Comments: One commenter asked, if a recipient has actual knowledge
that a student or employee has been subjected to unwelcome conduct on
the basis of sex, but the recipient does not know whether the
misconduct effectively denied the victim equal access to the
recipient's education program or activity, whether the recipient must
respond under Sec. Sec. 106.44(a) and 106.44(b)(2), to at least seek
out the missing information and if not, whether the respondent has an
obligation to inform the complainant of the nature of the missing and
needed additional information regarding denial of equal access.
Discussion: The Department acknowledges the commenter's question
about how much detail is needed in order for the recipient to have
actual knowledge triggering the recipient's obligation to provide a
non-deliberately indifferent response, and whether a recipient with
partial information about a sexual harassment allegation has a
responsibility to notify the complainant that additional information is
needed to further evaluate or respond to the allegation. In response,
the Department notes that the definition of ``complainant'' under Sec.
106.30 is an individual who is alleged to be the victim of conduct that
could constitute sexual harassment; thus, 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 in a non-deliberately indifferent manner under
Sec. 106.44(a). The definition of ``actual knowledge,'' in Sec.
106.30, also reflects this concept as actual knowledge means notice of
sexual harassment or allegations of sexual harassment.
These final regulations, and Sec. 106.44(a) in particular,
incorporate principles similar to the principles in the Department's
2001 Guidance with respect to a recipient's response to a student's or
parent's report of sexual harassment or sexual harassment allegations,
or a recipient's response to direct observation by a responsible
employee of conduct that could constitute sexual harassment. The
Department's 2001 Guidance states:
If a student or the parent of an elementary or secondary student
provides information or complains about sexual harassment of the
student, the school should initially discuss what actions the
student or parent is seeking in response to the harassment. The
school should explain the avenues for informal and formal action,
including a description of the grievance procedure that is available
for sexual harassment complaints and an explanation of how the
procedure works. If a responsible school employee has directly
observed sexual harassment of a student, the school should contact
the student who was harassed (or the parent, depending upon the age
of the student), explain that the school is responsible for taking
steps to correct the harassment, and provide the same information
described in the previous sentence.\831\
---------------------------------------------------------------------------
\831\ 2001 Guidance at 15.
Like the 2001 Guidance, these final regulations in Sec. 106.6(g)
recognize that a parent or guardian may have the legal right to act on
behalf of a ``complainant,'' ``respondent,'' ``party,'' or other
individual. Section 106.44(a) also requires that the Title IX
Coordinator promptly contact the
[[Page 30193]]
complainant to discuss the availability of supportive measures as
defined in Sec. 106.30, consider the complainant's wishes with respect
to supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain the process for filing a formal complaint. Thus, if a
parent or guardian has a legal right to act on behalf of a student, the
parent or guardian has the right to act on behalf of a Title IX
complainant, including with respect to discussing supportive measures,
or deciding to file a formal complaint.
Changes: None.
Modeling Reporting on the Military System
Comments: Commenters argued that the reporting system used in the
U.S. military to address sexual assault should be modified for use in
Title IX reporting systems in order to best serve civil rights
purposes. Commenters described the military reporting system as
providing sexual assault victims with a two-track reporting system,
under which a victim can choose a ``restricted'' or ``unrestricted''
report. Commenters described the military system's ``restricted''
report option as allowing the victim to report confidentially, for the
purpose of receiving services, and no investigation is commenced unless
the victim chooses an ``unrestricted'' reporting path whereby the
victim's identity is not confidential and charges are initiated against
the alleged perpetrator. Commenters asserted that giving victims these
options for reporting helps address the well-known and well-researched
fact that sexual assault is underreported throughout society, including
in military and school environments, and that many survivors of sexual
violence exercise the ``victim's veto'' whereby no investigation takes
place, and no services are given to a victim, because the victim
chooses not to report their experience in any official manner.
Commenters asserted that the withdrawn 2014 Q&A essentially created
this two-track model,\832\ which best serves the needs of complainants,
and argued that it best fits the purpose of civil rights protections,
especially as compared to the traditional law enforcement model, under
which a victim's only option is to report to police, and then police
officers and prosecutors have sole discretion whether to investigate
and whether to prosecute, and the victim has little or no control over
those decisions, leading many victims to exercise the ``victim's veto''
and never report at all.\833\
---------------------------------------------------------------------------
\832\ Commenters cited: 2014 Q&A at 21, 22, 24.
\833\ Commenters cited, e.g.: Tamara F. Lawson, A Shift Towards
Gender Equality in Prosecutions: Realizing Legitimate Enforcement of
Crimes Committed Against Women in Municipal and International
Criminal Law, 33 S. Ill. Univ. L. J. 181, 188-90 (2008) (in
instances of sexual violence, police and prosecutors decide to
advance very few cases through the criminal system); Kimberly A.
Lonsway & Joanne Archambault, The ``Justice Gap'' for Sexual Assault
Cases: Future Directions for Research and Reform, 18 Violence
Against Women 145, 147 (2012) (finding that only five to 20 percent
of victims will report a sexual assault to law enforcement); Douglas
Evan Beloof, The Third Model of Criminal Process: The Victim
Participation Model, 1999 Utah L. Rev. 289, 306 (1999) (arguing that
the ``victim's veto'' occurs when the victim does not even report
the wrongdoing); Kimberly A. Lonsway & Joanne Archambault, The
``Justice Gap'' for Sexual Assault Cases: Future Directions for
Research and Reform, 18 Violence Against Women 145, 159 (2012)
(explaining that factors such as ``poor evidence gathering by police
(especially victim interviews), intimidating defense tactics,
incompetent prosecutors, and inappropriate decision making by
jurors'' result in low sexual assault conviction rates). Commenters
asserted this leads to more victims deciding not to report at all.
---------------------------------------------------------------------------
Commenters described the approach of the withdrawn 2014 Q&A as
giving survivors two choices of how to report, so survivors essentially
would make the decision whether to initiate an investigation.
Commenters asserted that the withdrawn 2014 Q&A ensured that if a
survivor made an official report to a responsible employee or to the
Title IX Coordinator the school must investigate unless the survivor
explicitly requested that there be no investigation and the Title IX
Coordinator granted that request after weighing multiple factors. On
the other hand, commenters asserted, under that guidance a survivor
could choose a ``confidential path'' and access services and
accommodations for healing, without initiating an investigation unless
or until the survivor changed their mind and officially reported to a
responsible employee or to the Title IX Coordinator (which, commenters
stated, is the equivalent in the military system as turning a
restricted report into an unrestricted report, which is commonplace).
Commenters urged the Department to reinstate the withdrawn 2014 Q&A,
rather than keep the provisions in the proposed rules, regarding how
complainants must report and what happens after a complainant reports.
Discussion: The Department is aware of the two-track reporting
system used in the U.S. military,\834\ and agrees that giving victims
control over whether to report for purposes of receiving supportive
services only, or also for the purpose of launching an official
investigation into the alleged sexual assault, is beneficial to sexual
assault victims. These final regulations share similarities with the
military's two-track reporting system; the Department desires to
respect the autonomy of each alleged victim to report for the purpose
of receiving supportive measures, and to decide whether or not to also
request an investigation into the allegations of sexual harassment. As
commenters observed, the withdrawn 2014 Q&A's approach to what happens
when an alleged victim reports sexual harassment also shares
similarities with the two-track reporting system used in the military.
These final regulations, too, are similar in some ways to the approach
taken in the withdrawn 2014 Q&A. However, the Department believes that
the additional precision, and obligatory nature, of these final
regulations results in an approach superior to simply reinstating prior
guidance.
---------------------------------------------------------------------------
\834\ E.g., U.S. Dep't. of Defense, Sexual Assault Prevention
and Response, ``Reporting Options,'' https://sapr.mil/reporting-options (``Sexual assault is the most underreported crime in our
society and in the Military. While the Department of Defense [DoD]
prefers that sexual assault incidents are reported to the command to
activate both victims' services and law enforcement actions, it
recognizes that some victims desire only healthcare and advocacy
services and do not want command or law enforcement involvement. The
Department believes its first priority is for victims to be treated
with dignity and respect and to receive the medical treatment,
mental health counseling, and the advocacy services that they
deserve. Under DoD's Sexual Assault Prevention and Response (SAPR)
Policy, Service members . . . have two reporting options--Restricted
Reporting and Unrestricted Reporting. Under Unrestricted Reporting,
both the command and law enforcement are notified. With Restricted
(Confidential) Reporting, the adult sexual assault victim can access
healthcare, advocacy services, and legal services without the
notification to command or law enforcement.'').
---------------------------------------------------------------------------
Under the final regulations, any person may report \835\ that any
individual has allegedly been victimized by conduct that could
constitute sexual harassment,\836\ and the recipient must respond
promptly, including by offering supportive measures to the complainant
(i.e., the alleged victim) and telling the complainant about the option
of also filing a formal complaint that starts an investigation.\837\
The only persons who can initiate an investigation are the complainant
themselves, or the Title IX Coordinator.\838\ Thus, if a complainant
wants a report to remain confidential (in the sense of the
complainant's identity
[[Page 30194]]
not being disclosed to the alleged perpetrator, and not launching an
investigation), the complainant may receive supportive measures without
an investigation being conducted--unless the Title IX Coordinator,
after having considered the complainant's wishes, decides that it would
be clearly unreasonable for the school not to investigate the
complainant's allegations. On the other hand, if the complainant
chooses to file a formal complaint, the school must initiate a
grievance process and investigate the complainant's allegations.\839\
These final regulations preserve the benefits of allowing third party
reporting while still giving the complainant as much control as
reasonably possible over whether the school investigates, because under
the final regulations a third party can report--and trigger the Title
IX Coordinator's obligation to reach out to the complainant and offer
supportive measures--but the third party cannot trigger an
investigation.\840\ Further, the final regulations allow a complainant
to initially report for the purpose of receiving supportive measures,
and to later decide to file a formal complaint.
---------------------------------------------------------------------------
\835\ Section 106.8(a) (``any person'' may report sexual
harassment regardless of whether the person reporting is the alleged
victim themselves, or any third party).
\836\ Section 106.30 (defining ``complainant'' to mean an
individual who is alleged to be the victim of conduct that could
constitute sexual harassment).
\837\ Section 106.44(a).
\838\ Section 106.30 (defining ``formal complaint'' as a
document filed by a complainant or signed by a Title IX
Coordinator).
\839\ Section 106.44(b)(1).
\840\ Cf. Sec. 106.6(g) (If a parent or guardian has a legal
right to act on a complainant's behalf, the parent or guardian may
file a formal complaint on behalf of the complainant).
---------------------------------------------------------------------------
Changes: None.
Section 106.44(a) ``Education Program or Activity''
General Support and Opposition for ``Education Program or Activity'' as
a Jurisdictional Condition
Comments: Several commenters expressed support for the NPRM's
approach to the ``education program or activity'' condition, stating
that it is consistent with the Title IX statute and case law.
Commenters asserted that the Department has appropriately recognized
that whether misconduct occurs on campus or off campus is not
dispositive, and that courts have similarly applied a multi-factor test
to deciding whether conduct occurred in an education program or
activity. One commenter cited Federal cases suggesting that sexually
hostile conduct itself, and not just its consequences, must occur on
campus or at a school-sponsored or supervised event for Title IX to
apply.\841\ One commenter expressed support for the NPRM's approach to
education program or activity because it is consistent with the
Department's past practice. The commenter cited Departmental
determination letters involving institutions of higher education in
2004 and 2008 that stated recipients do not have a Title IX duty to
address alleged misconduct that occurs off campus and that does not
involve the recipient's programs or activities. A few commenters
expressed support for the NPRM's approach to education program or
activity, asserting that it imposes reasonable limits on recipient
responsibility. One commenter asserted that schools are not the sex
police and that expecting schools to have jurisdiction over activity in
off-campus apartments, at a parent's house, a local bar, or nearby
hotel, is unrealistic. One commenter expressed support for the NPRM's
approach to including ``education program or activity'' as a condition
triggering a recipient's response obligations, but urged the Department
to go further and explicitly exclude from Title IX allegations made by
or against someone who has no relationship with the recipient, and
allegations involving students but occurring in a time or place totally
unrelated to school activities such as during summer vacation hundreds
of miles away from campus.
---------------------------------------------------------------------------
\841\ Commenters cited: Doe v. Brown Univ., 896 F.3d 127, 132
fn. 6 (1st Cir. 2018); Yeasin v. Durham, 719 F. App'x 844 (10th Cir.
2018); Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014); Rost ex
rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121
fn.1 (10th Cir. 2008); Ostrander v. Duggan, 341 F.3d 745 (8th Cir.
2003); Farmer v. Kan. State Univ., No. 16-CV-2256, 2017 WL 980460,
at *8 (D. Kan. Mar. 14, 2017), aff'd by Farmer v. Kan. State Univ.,
918 F.3d 1094 (10th Cir. 2019); Stephanie Ebert, The Boston Globe
(Dec. 8, 2018) (Harvard student suing Harvard University in Federal
court for investigating the student for rape allegation by non-
student far from campus).
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Other commenters asserted that the NPRM's approach to education
program or activity was unclear. Commenters stated that the NPRM's
preamble mentioned several factors, such as recipient ownership of the
premises, endorsement, oversight, supervision, and disciplinary power,
but argued that this multi-factor test may be confusing and make it
difficult for students and schools to understand their Title IX rights
and obligations. One commenter argued that the practical application of
the Department's approach to misconduct that has both on-campus and
off-campus elements would be challenging; for example, the commenter
stated, if a sexual misconduct complaint involved a series of actions
occurring on campus and off campus then the recipient may have to sift
through evidence to identify and ignore events not ``in'' a program or
activity.
Many commenters expressed concern that the NPRM's approach to the
education program or activity condition would increase danger to
students and others. Commenters cited studies and scholarly articles
suggesting that sexual assault can cause lasting psychological damage
to victims, including increasing suicide rates and substantially
impacting victims' academic career, retention, graduation, and grade
point average, regardless of whether the sexual assault occurred off
campus or on campus.\842\ Commenters argued that not addressing off-
campus misconduct may chill reporting, make it harder for the community
to know the nature of threats facing them, and even discourage young
women from attending college. Commenters expressed concern that the
NPRM would cause victims to leave school, asserting that over one-third
of sexual harassment or assault victims drop out of school.\843\
Commenters argued that because a significant number of sexual assaults
occur off campus,\844\ not requiring schools to respond to those
assaults will only lead to more college students dropping out. Several
commenters emphasized that the reality is that off-campus life is often
an essential part of the educational experience, such as off-campus
travel for conferences and networking events, and that off-campus
living for students is quite common.\845\ Commenters argued that the
Department should not give a free pass to perpetrators whose abusive
conduct occurs off campus. Commenters expressed concern that repeat
offenders could systematically target victims, knowing they will get
away with it.
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\842\ See data cited by commenters in the ``Impact Data''
subsection of the ``General Support and Opposition'' section of this
preamble.
\843\ Commenters cited: Cecilia Mengo & Beverly M. Black,
Violence Victimization on a College Campus: Impact on GPA and School
Dropout, 18 Journal of Coll. Student Retention: Research, Theory &
Practice 2, 234, 244 (2015).
\844\ Commenters cited: EduRisk by United Educators, Confronting
Campus Sexual Assault: An Examination of Higher Education Claims at
6 (2015) (``In 41 percent of claims, the victim and perpetrator
attended the same off-campus party before going back to campus,
where the sexual assault occurred. These off-campus parties included
institution-recognized sorority and fraternity houses, athletic team
houses, and students' off-campus residences.''); U.S. Dep't. of
Justice, Bureau of Justice Statistics, Rape and Sexual Assault
Victimization Among College-Age Females, 1995-2013 at 6 (2014) (95
percent of sexual assaults of female students ages 18-24 occur
outside of school).
\845\ Commenters cited: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011);
Rochelle Sharp, How Much Does Living Off Campus Cost? Who Knows?,
The New York Times (Aug. 5, 2016) (87 percent of college students
and even more elementary and secondary school students reside off
campus).
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Commenters raised concerns about off-campus Greek life as hotbeds
of sexual misconduct not covered by the NPRM, arguing that students are
more
[[Page 30195]]
likely to experience sexual assault if in a fraternity or sorority, and
that men in fraternities are more likely than other male students to be
perpetrators of sexual misconduct.\846\ Commenters expressed concern
that recipients might interpret the NPRM as preventing them from
addressing sexual misconduct in fraternities, sororities, and social
clubs the recipient does not recognize,\847\ or perversely encourage
recipients not to recognize Greek letter associations, but that the
Department should encourage such relationships because they often
entail mandatory insurance, risk management standards, and training
requirements to reduce incidents of sexual misconduct.
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\846\ Commenters cited: Jacqueline Chevalier Minow & Christopher
J. Einolf, Sorority Participation and Sexual Assault Risk, 15
Violence Against Women 7 (2009); Jennifer Fleck, Sexual assault more
prevalent in fraternities and sororities, study finds, UWire.com
(Oct. 16, 2014); Claude A. Mellins et al., Sexual Assault Incidents
Among College Undergraduates: Prevalence and Factors Associated with
Risk, 13 Plos One 1 (2017).
\847\ Commenters cited: Jacquelyn D. Weirsma-Mosely et al., An
Empirical Investigation of Campus Demographics and Reported Rapes,
65 Journal of Am. Coll. Health 4 (2017); Cortney A. Franklin,
Sorority Affiliation and Sexual Assault Victimization, 22 Violence
Against Women 8 (2016).
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Commenters asserted that the NPRM especially increases risks to
community college and vocational school students because such students
generally live off campus, to students of color and other already
marginalized students who may not be able to afford to live on campus,
to elementary and secondary school students with disabilities who may
be separated from their peers and removed to off-site services, and to
LGBTQ students because it may be harder for them to find adequate
outside support services. One commenter argued that the Department's
exclusion of off-campus assaults will hinder Federal background check
processes, potentially harming our national security and exposing co-
workers to danger. Another commenter stated that the corporate world
does not exclude out-of-office misconduct from company codes of
conduct, and so the Department should not set young people up to fail
by not showing them early in life that misconduct is unacceptable and
will lead to consequences.
Commenters argued that Federal courts have been supportive of
universities applying student codes of conduct to misconduct occurring
off campus and outside the school's programs or activities.\848\
Commenters argued that courts have recognized that an assailant's mere
presence on campus creates a hostile environment for sexual harassment
victims, exposing recipients to Title IX liability under a deliberate
indifference standard if the recipient fails to redress the hostile
environment even where the underlying sexual harassment or assault
occurred off campus and outside the recipient's education program or
activity. Commenters asserted that the proposed rules would leave
recipients vulnerable to private Title IX lawsuits because recipients
would not need to address the continuing effects of sexual assault that
occurred outside the recipient's program or activity under the
Department's regulations yet a Federal court may hold otherwise.\849\
Commenters argued that Federal courts have determined that regardless
of where a sexual assault occurred, where both parties are in the same
education program or activity a recipient should be held liable under a
deliberate indifference standard based on the recipient's response to
the alleged incident, even if the incident happened under circumstances
outside the recipient's control.\850\ Commenters argued that courts
have allowed Title IX private causes of action for sexual misconduct to
proceed even where some or all of alleged misconduct occurred in a
location outside the recipient's control so long as there was ``some
nexus between the out-of-school conduct and the school'' \851\ and that
the proposed rules should take the same approach. Commenters argued
that the Supreme Court's Gebser decision involved sexual activity
between a teacher and student where the sexual activity did not take
place on school grounds, yet the Supreme Court did not consider that
sexual harassment to be outside the purview of Title IX.\852\
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\848\ Commenters cited: Slaughter v. Brigham Young Univ., 514
F.2d 622 (10th Cir. 1975); Due v. Fla. Agric. & Mech. Univ. (N.D.
Fla. 1963); Hill v. Bd. of Trustees of Mich. State Univ., 182 F.
Supp. 2d 621 (W.D. Mich. 2001); Gomes v. Univ. of Me. Sys., 304
F.Supp. 2d 117 (D. Me. 2004).
\849\ Commenters cited: Lapka v. Chertoff, 517 F.3d 974 (7th
Cir. 2008); 477 F.3d 1282, 1298 (11th Cir. 2007); Doe v. East Haven
Bd. of Educ., 200 F. App'x 46 (2d Cir. 2006); Butters v. James
Madison Univ., 145 F. Supp. 3d 610 (W.D. Va. 2015), dismissed on
summary judgment in Butters v. James Madison Univ., 208 F. Supp. 3d
745 (W.D. Va. 2016); Williams v. Bd. of Regents of Univ. Sys. of
Ga., Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D.
Conn. 2006); Crandell v. New York Coll. of Osteopathic Med., 87 F.
Supp. 2d 304, 316 (S.D.N.Y. 2000); Kinsman v. Fla. State Univ. Bd.
of Trustees, No. 4:15-CV-235, 2015 WL 11110848 (N.D. Fla. Aug. 12,
2015); McGinnis v. Muncie Cmty. Sch. Corp., 1:11-CV-1125, 2013 WL
2456067 (S.D. Ind. June 5, 2013); C.S. v. S. Columbia Sch. Dist.,
No. 4:1-CV-1013, WL 2371413 (M.D. Pa. May 21, 2013); Kelly v. Yale
Univ., No. 3:01-CV-1591, 2003 WL 1563424 (D. Conn. Mar. 26, 2003).
\850\ Commenters cited: Spencer v. Univ. of N.M. Bd. of Regents,
No. 15-CV-141, 2016 WL 10592223 (D. N.M. Jan. 11, 2016).
\851\ Commenters cited: Weckhorst v. Kan. State Univ., 241 F.
Supp. 3d 1154, 1168-69 (D. Kan. 2017); Rost ex rel. KC v. Steamboat
Springs RE -2 School Dist., 511 F.3d 1114, 1121 fn.1 (10th Cir.
2008).
\852\ Commenters cited: Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 278 (1998).
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Commenters argued that the 2001 Guidance and 2017 Q&A require
recipients to address sexual harassment that occurs off campus where
the underlying sexual harassment or assault causes the complainant to
experience a hostile environment on campus, and urged the Department to
ensure that the final regulations impose similar obligations for
recipients to address the continuing effects of sexual harassment that
occurs off campus.
Another commenter contended that the NPRM conflicts with recent
Department actions under the Trump Administration, such as cutting off
partial funding to the Chicago Public School system for failing to
address two reports of off-campus sexual assault.
Discussion: The Department appreciates the general support for our
approach to including the concept of a recipient's ``education program
or activity'' in these final regulations. The ``education program or
activity'' language in the Title IX statute \853\ provides context for
the scope of Title IX's non-discrimination mandate, which ensures that
Federal funds are not used to support discriminatory practices in
education programs or activities.\854\
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\853\ 20 U.S.C. 1681(a).
\854\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (the
objectives of Title IX are two-fold: First, to ``avoid the use of
Federal resources to support discriminatory practices'' and second,
to ``provide individual citizens effective protection against those
practices'').
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In Davis, the Supreme Court framed the question in that case as
whether a recipient of Federal financial assistance may be liable for
damages under Title IX, for failure to respond to peer-on-peer sexual
harassment in the recipient's program or activity.\855\ The Supreme
Court in Davis continued to reference the statutory ``program or
activity'' language throughout its decision \856\ and refuted
dissenting justices' arguments that the majority's approach permitted
too much liability against recipients in part by reasoning: ``Moreover,
because the harassment must occur `under' `the operations of' a funding
recipient, see 20 U.S.C. 1681(a); Sec. 1687 (defining `program or
activity'), the harassment must take place in a context subject to
[[Page 30196]]
the school district's control. . . . These factors combine to limit a
recipient's damages liability to circumstances wherein the recipient
exercises substantial control over both the harasser and the context in
which the known harassment occurs.'' \857\
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\855\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 639
(1999).
\856\ Id. at 652 (``Moreover, the provision that the
discrimination occur `under any education program or activity'
suggests that the behavior be serious enough to have the systemic
effect of denying the victim equal access to an educational program
or activity'').
\857\ Id. at 645.
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The Department's regulatory authority must emanate from Federal
law.\858\ Congress, in enacting Title IX, has conferred on the
Department the authority to regulate under Federal law. The appropriate
place to start is the statutory text of Title IX, for ``[u]nless
otherwise defined, statutory terms are generally interpreted in
accordance with their ordinary meaning.'' \859\ Title IX's text, 20
U.S.C. 1681(a) (emphasis added), 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[.]'' The Department's authority to regulate sexual
harassment as a form of sex discrimination pursuant to Title IX is
clear; the Supreme Court has held that sexual harassment is a form of
sex discrimination, and has confirmed that Congress has directed the
Department, as a Federal agency that disburses funding to education
programs or activities, to establish requirements to effectuate Title
IX's non-discrimination mandate.\860\ The Department's authority to
regulate sexual harassment depends on whether sexual harassment occurs
in ``any education program or activity'' because the Department's
regulatory authority is co-extensive with the scope of the Title IX
statute. Title IX does not authorize the Department to regulate sex
discrimination occurring anywhere but only to regulate sex
discrimination in education programs or activities.\861\ Congress, in
the Title IX statute, provided definitions of ``program or activity''
that are reflected in the Department's current Title IX
regulations.\862\
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\858\ See Stark v. Wickard, 321 U.S. 288, 309 (1944).
\859\ BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (citing
Perrin v. United States, 444 U.S. 37, 42 (1979)).
\860\ Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 280-81
(1998) (quoting 20 U.S.C. 1682).
\861\ See the ``Section 106.44(a) `against a person in the U.S.'
'' subsection of the ``Section 106.44 Recipient's Response to Sexual
Harassment, Generally'' section this preamble, for discussion of the
other jurisdictional limitation on the scope of Title IX--that the
statute protects any person ``in the United States.''
\862\ 20 U.S.C. 1687; 34 CFR 106.2(h).
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The Supreme Court has applied the ``program or activity'' language
in the Title IX statute in the context of judicial enforcement of Title
IX. The Department does not believe that the Supreme Court's
application of ``program or activity'' in the context of sexual
harassment as a form of sex discrimination is an unreasonable
interpretation of the Title IX statute, because the Supreme Court
applied the language of the statute including the definitions of
``program or activity'' provided in the statute. The Department thus
concludes that we should align these final regulations with the Supreme
Court's approach to ``education program or activity'' in the context of
Title IX sexual harassment.\863\ By contrast, as explained in the
``Adoption and Adaption of the Supreme Court's Framework to Address
Sexual Harassment,'' the three parts of the Gebser/Davis framework
(i.e., definition of sexual harassment, actual knowledge, deliberate
indifference) do not appear in the text of the Title IX statute, and
the Department believes that it may promulgate regulatory requirements
that differ in significant ways from the Gebser/Davis framework, to
best effectuate the purposes of Title IX's non-discrimination mandate
in the context of administrative enforcement, and we have done so in
these final regulations.
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\863\ The Supreme Court's analysis of the ``program or
activity'' statutory language was in the context of judicial
enforcement, but the Department does not believe a different
analysis is necessary or advisable for administrative enforcement,
where the Department--like the Supreme Court--is constrained to
interpret and apply the text of the statute including the
definitions of ``program or activity'' provided in the statute.
Consistent with this position, and as discussed throughout this
preamble, we have revised Sec. 106.44(a) to clarify that
``education program or activity'' for purposes of these sexual
harassment regulations includes circumstances wherein the recipient
exercises substantial control over both the harasser and the context
of the harassment--the same conclusion reached by the Davis Court
when it applied the ``program or activity'' statutory language to
the context of a school's response to sexual harassment. Davis, 526
U.S. at 645.
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The Department acknowledges the concerns of many commenters who
argued that with respect to sexual harassment, whether the alleged
conduct occurred in the recipient's education program or activity might
have been understood too narrowly under the NPRM (e.g., to exclude all
off-campus conduct) or at least created potential confusion for
complainants and recipients. In response to commenters' concerns, the
Department believes that providing additional clarification as to the
scope of a recipient's education program or activity for purposes of
Title IX sexual harassment is necessary, and, therefore, adds to Sec.
106.44(a) in the final regulations language similar to language used by
the Court in Davis: For purposes of Sec. 106.30, Sec. 106.44, and
Sec. 106.45, the phrase ``education program or activity'' includes
``locations, events, or circumstances over which the recipient
exercised substantial control over both the respondent and the context
in which the harassment occurs'' and also includes ``any building owned
or controlled by a student organization that is officially recognized
by a postsecondary institution.'' The Title IX statute \864\ and
existing Title IX regulations,\865\ already contain detailed
definitions of ``program or activity'' that, among other aspects of
such definitions, include ``all of the operations of'' a postsecondary
institution or local education agency. The Department will interpret
``program or activity'' in these final regulations in accordance with
the Title IX statutory (20 U.S.C. 1687) and regulatory definitions (34
CFR 106.2(h)), guided by the Supreme Court's language applied
specifically for use in sexual harassment situations under Title IX
regarding circumstances over which a recipient has control and (for
postsecondary institutions) buildings owned or controlled by student
organizations if the student organization is officially recognized by
the postsecondary institution.\866\
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\864\ 20 U.S.C. 1687.
\865\ 34 CFR 106.2(h); 34 CFR 106.2(i) (defining ``recipient'');
34 CFR 106.31(a) (referring to ``any academic, extracurricular,
research, occupational training, or other education program or
activity operated by a recipient which receives Federal financial
assistance'').
\866\ Section 106.44(a) (adding ``For purposes of this section,
Sec. 106.30, and Sec. 106.45, `education program or activity'
includes locations, events, or circumstances over which the
recipient exercised substantial control over both the respondent and
the context in which the harassment occurs, and also includes any
building owned or controlled by a student organization that is
officially recognized by a postsecondary institution.'').
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While ``all of the operations of'' a recipient (per existing
statutory and regulatory provisions), and the additional ``substantial
control'' language in these final regulations, clearly include all
incidents of sexual harassment occurring on a recipient's campus, the
statutory and regulatory definitions of program or activity along with
the revised language in Sec. 106.44(a) clarify that a recipient's
Title IX obligations extend to sexual harassment incidents that occur
off campus if any of three conditions are met: If the off-campus
incident occurs as part of the recipient's ``operations'' pursuant to
20 U.S.C. 1687 and 34 CFR 106.2(h); if the recipient exercised
substantial control over the respondent and the context of alleged
sexual harassment that occurred off campus pursuant to Sec. 106.44(a);
or if a sexual harassment incident occurs at
[[Page 30197]]
an off-campus building owned or controlled by a student organization
officially recognized by a postsecondary institution pursuant to Sec.
106.44(a).
The NPRM cited to Federal court opinions that have considered
whether sexual harassment occurred in a recipient's education program
or activity by examining factors such as whether the recipient funded,
promoted, or sponsored the event or circumstance where the alleged
harassment occurred. While it may be helpful or useful for recipients
to consider factors applied by Federal courts to determine the scope of
a recipient's program or activity, no single factor is determinative to
conclude whether a recipient exercised substantial control over the
respondent and the context in which the harassment occurred, or whether
an incident occurred as part of ``all of the operations of'' a school,
college, or university.
The revised language in Sec. 106.44(a) also specifically addresses
commenters' concerns about recognized student organizations that own
and control buildings such as some fraternities and sororities
operating from off-campus locations where sexual harassment and assault
may occur with frequency. The revised language further addresses
commenters' questions regarding whether postsecondary institutions'
Title IX obligations are triggered when sexual harassment occurs in an
off-campus location not owned by the postsecondary institution but that
is in use by a student organization that the institution chooses to
officially recognize such as a fraternity or sorority. The revisions to
Sec. 106.44(a) clarify that where a postsecondary institution has
officially recognized a student organization, the recipient's Title IX
obligations apply to sexual harassment that occurs in buildings owned
or controlled by such a student organization, irrespective of whether
the building is on campus or off campus, and irrespective of whether
the recipient exercised substantial control over the respondent and the
context of the harassment outside the fact of officially recognizing
the fraternity or sorority that owns or controls the building. The
Department makes this revision to promulgate a bright line rule that
decisively responds to commenters and provides clarity with respect to
recipient-recognized student organizations that own or control off-
campus buildings. Official recognition of a student organization,
alone, does not conclusively determine whether all the events and
actions of the students in the organization become a part of a
recipient's education program or activity; however, the Department
believes that a reasonable, bright line rule is that official
recognition of a student organization brings buildings owned or
controlled by the organization under the auspices of the postsecondary
institution recipient and thus within the scope of the recipient's
Title IX obligations. As part of the process for official recognition,
a postsecondary institution may require a student organization that
owns or controls a building to agree to abide by the recipient's Title
IX policy and procedures under these final regulations, including as to
any misconduct that occurs in the building owned or controlled by a
student organization. Accordingly, postsecondary institutions may not
ignore sexual harassment that occurs in buildings owned or controlled
by recognized student organizations. The Department acknowledges that
even though postsecondary institutions may not always control what
occurs in an off campus building owned or controlled by a recognized
student organization, such student organizations and the events in
their buildings often become an integral part of campus life. The
Department also acknowledges that a postsecondary institution may be
limited in its ability to gather evidence during an investigation if
the incident occurs off campus on private property that a student
organization (but not the institution) owns or controls. A
postsecondary institution, however, may still investigate a formal
complaint arising from sexual harassment occurring in a building owned
or controlled by a recognized student organization (whether the
building is on campus or off campus), for instance by interviewing
students who were allegedly involved in the incident and who are a part
of the officially recognized student organization. Thus, under the
final regulations (e.g., Sec. 106.44(b)(1)) a postsecondary
institution must investigate formal complaints alleging sexual
harassment that occurred in a fraternity or sorority building (located
on campus, or off campus) owned by the fraternity or sorority, if the
postsecondary institution has officially recognized that Greek life
organization. Further, under Sec. 106.44(a) the recipient must offer
supportive measures to a complainant alleged to be the victim of sexual
harassment occurring at a building owned or controlled by an officially
recognized student organization. Where a postsecondary institution has
officially recognized a student organization, and sexual harassment
occurs in an off campus location not owned or controlled by the student
organization yet involving members of the officially recognized student
organization, the recipient's Title IX obligations will depend on
whether the recipient exercised substantial control over the respondent
and the context of the harassment, or whether the circumstances may
otherwise be determined to have been part of the ``operations of'' the
recipient.
We note that the revision in Sec. 106.44(a) referencing a
``building owned or controlled by a student organization that is
officially recognized by a postsecondary institution'' is not the same
as, and should not be confused with, the Clery Act's use of the term
``noncampus building or property,'' even though that phrase is defined
under the Clery Act in part by reference to student organizations
officially recognized by an institution.\867\ For example, ``education
program or activity'' in these final regulations includes buildings
within the confines of the campus on land owned by the institution that
the institution may rent to a recognized student organization.\868\ As
discussed in the ``Clery Act'' subsection of the ``Miscellaneous''
section of this preamble, the Clery Act and Title IX serve distinct
purposes, and Clery Act geography is not co-extensive with the scope of
a recipient's education program or activity under Title IX.
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\867\ See 20 U.S.C. 1092(f)(6)(iii) (defining ``noncampus
building or property'' in part as ``any building or property owned
or controlled by a student organization recognized by the
institution''). The Clery Act regulations, 34 CFR 668.46(a), include
``noncampus building or property'' as part of an institution's Clery
geography and define ``noncampus building or property'' as ``[a]ny
building or property owned or controlled by a student organization
that is officially recognized by the institution; or [a]ny building
or property owned or controlled by an institution that is used in
direct support of, or in relation to, the institution's educational
purposes, is frequently used by students, and is not within the same
reasonably contiguous geographic area of the institution.'').
\868\ But see U.S. Dep't. of Education, Office of Postsecondary
Education, The Handbook for Campus Safety and Security Reporting, 2-
18 to 2-19 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
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With respect to commenters who suggested that the final regulations
should not apply to sexual misconduct by or against an individual with
no relationship to the recipient, the Department believes that the
framework adopted in the final regulations appropriately effectuates
the broad non-discrimination mandate of Title IX (which protects any
``person'' from discrimination in an education program or activity)
while also ensuring that
[[Page 30198]]
recipients are responsible for addressing sexual harassment occurring
in an educational institution's ``operations,'' or when the recipient
has control over the situation, or where a postsecondary institution
has recognized a student organization thereby lending the recipient's
implicit extension of responsibility over circumstances involving
sexual harassment that occurs in buildings owned or controlled by such
a student organization. Like the ``no person'' language in the Title IX
statute, the final regulations place no restriction on the identity of
a complainant (Sec. 106.30 defines complainant to mean ``an individual
who is alleged to be the victim of conduct that could constitute sexual
harassment''), obligating a recipient to respond to such a complainant
regardless of the complainant's relationship to the recipient.
Similarly, reflecting that the Title IX statute does not limit
commission of prohibited discrimination only to certain individuals
affiliated with a recipient, the final regulations define a respondent
to mean ``an individual who has been reported to be the perpetrator of
conduct that could constitute sexual harassment'' without restricting a
respondent to being a person enrolled or employed by the recipient or
who has any other affiliation or connection with the recipient.
However, the final regulations do require that in order to file a
formal complaint, the complainant must be ``participating in or
attempting to participate in'' the recipient's education program or
activity at the time the formal complaint is filed.\869\ This prevents
recipients from being legally obligated to investigate allegations made
by complainants who have no relationship with the recipient, yet still
protects those complainants by requiring the recipient to respond
promptly in a non-deliberately indifferent manner. For similar reasons,
the final regulations provide in Sec. 106.45(b)(3)(ii) that a
recipient may in its discretion dismiss a formal complaint if the
respondent is no longer enrolled or employed by the recipient,
recognizing that a recipient's general obligation to provide a
complainant with a prompt, non-deliberately indifferent response might
not include completing a grievance process in a situation where the
recipient lacks any disciplinary authority over the respondent.
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\869\ A complainant may be ``attempting to participate'' in the
recipient's education program or activity, for example, where the
complainant has applied for admission, or where the complainant has
withdrawn but indicates a desire to re-enroll if the recipient
appropriately responds to sexual harassment allegations.
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In response to commenters' concerns that practical application of
the ``education program or activity'' condition might be challenging in
situations that, for example, involve some conduct occurring in the
recipient's education program or activity and some conduct occurring
outside the recipient's education program or activity, the Department
reiterates that ``off campus'' does not automatically mean that the
incident occurred outside the recipient's education program or
activity. The Department agrees that recipients are obliged to think
through the scope of each recipient's own education program or activity
in light of the statutory and regulatory definitions of ``program or
activity'' (20 U.S.C. 1687 and 34 CFR 106.2(h)) and the statement in
Sec. 106.44(a) that ``education program or activity'' includes
locations, events, or circumstances over which the recipient exercised
substantial control over both the respondent and the context in which
the harassment occurs as well as buildings owned or controlled by
student organizations officially recognized by a postsecondary
institution.
To ensure that recipients adequately consider the resulting
coverage of Title IX to each recipient's particular circumstances, the
final regulations require that every Title IX Coordinator,
investigator, decision-maker, and person who facilitates an informal
resolution process, must be trained on (among other things) ``the scope
of the recipient's education program or activity.'' \870\ We have also
revised Sec. 106.45(b)(10)(i)(D) so that materials used to train Title
IX personnel must be posted on a recipient's website. These revisions
ensure that a recipient's students and employees, and the public,
understand the scope of the recipient's education program or activity
for purposes of Title IX. Under Title IX, recipients must operate
education programs or activities free from sex discrimination, and the
Department will enforce these final regulations vigorously with respect
to a recipient's obligation to respond to sexual harassment that occurs
in the recipient's education program or activity.
---------------------------------------------------------------------------
\870\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------
In situations involving some allegations of conduct that occurred
in an education program or activity, and some allegations of conduct
that did not, the recipient must investigate the allegations of conduct
that occurred in the recipient's education program or activity, and
nothing in the final regulations precludes the recipient from choosing
to also address allegations of conduct outside the recipient's
education program or activity.\871\ For example, if a student is
sexually assaulted outside of an education program or activity but
subsequently suffers Title IX sexual harassment in an education program
or activity, then these final regulations apply to the latter act of
sexual harassment, and the recipient may choose to address the prior
assault through its own code of conduct. Nothing in the final
regulations prohibits a recipient from resolving allegations of conduct
outside the recipient's education program or activity by applying the
same grievance process required under Sec. 106.45 for formal
complaints of Title IX sexual harassment, even though such a process
would not be required under Title IX or these final regulations. Thus,
a recipient is not required by these final regulations to inefficiently
extricate conduct occurring outside an education program or activity
from conduct occurring in an education program or activity arising from
the same facts or circumstances in order to meet the recipient's
obligations with respect to the latter.
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\871\ Section 106.45(b)(3) (revised in the final regulations to
expressly state that although a recipient must dismiss allegations
about conduct that did not occur in the recipient's education
program or activity, such a mandatory dismissal is ``for purposes of
sexual harassment under title IX or this part; such a dismissal does
not preclude action under another provision of the recipient's code
of conduct.'').
---------------------------------------------------------------------------
The Department appreciates the various concerns raised by many
commenters regarding the extent to which students reside or spend time
off campus and how the application of the ``education program or
activity'' condition may affect students who experience sexual
harassment and sexual assault in off-campus situations, including
community college students, vocational school students, and students
who belong to marginalized demographic groups. The Department
reiterates that the final regulations do not impose a geographic test
or draw a distinction between on-campus misconduct and off-campus
misconduct. As discussed above, whether conduct occurs in a recipient's
education program or activity does not necessarily depend on the
geographic location of the incident. Instead, ``education program or
activity'' relies on statutory and regulatory definitions of ``program
or activity,'' \872\ on the statement adapted from the Supreme Court's
language in Davis added to
[[Page 30199]]
Sec. 106.44(a) that education program or activity includes locations,
events, or circumstances over which the recipient exercised substantial
control over the respondent and over the context in which the sexual
harassment occurred, and includes on-campus and off-campus buildings
owned or controlled by a student organization officially recognized by
a postsecondary institution. If a sexual assault occurs against a
student outside of an education program or activity, and the student
later experiences Title IX sexual harassment in an education program or
activity, then a recipient with actual knowledge of such sexual
harassment in the recipient's education program or activity must
respond pursuant to Sec. 106.44(a).
---------------------------------------------------------------------------
\872\ E.g., 20 U.S.C. 1687; 34 CFR 106.2(h).
---------------------------------------------------------------------------
The final regulations' approach reduces confusion for recipients
and students as to the scope of Title IX's protective coverage and
recognizes the Department's administrative role in enforcing this
important civil rights law according to the statute's plain terms.
Furthermore, as noted previously, nothing in the final regulations
prevents recipients from initiating a student conduct proceeding or
offering supportive measures to students affected by sexual harassment
that occurs outside the recipient's education program or activity.
Title IX is not the exclusive remedy for sexual misconduct or traumatic
events that affect students. As to misconduct that falls outside the
ambit of Title IX, nothing in the final regulations precludes
recipients from vigorously addressing misconduct (sexual or otherwise)
that occurs outside the scope of Title IX or from offering supportive
measures to students and individuals impacted by misconduct or trauma
even when Title IX and its implementing regulations do not require such
actions.\873\ The Department emphasizes that sexual misconduct is
unacceptable regardless of the circumstances in which it occurs, and
recognizing jurisdictional limitations on the purview of a statute does
not equate to condoning any form of sexual misconduct.
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\873\ As discussed in the ``Directed Question 5: Individuals
with Disabilities'' subsection of the ``Directed Questions'' section
of this preamble, nothing in these final regulations affects a
recipient's obligations to comply with all applicable disability
laws, such as the ADA. Thus, for example, if a recipient's student
(or employee) has a disability caused or exacerbated by, or arising
from, sexual harassment, a recipient must comply with applicable
disability laws (including with respect to providing reasonable
accommodations) irrespective of whether the sexual harassment that
caused or exacerbated the individual's disability constitutes Title
IX sexual harassment to which the recipient must respond under these
final regulations.
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The Department believes a commenter's concern regarding the
negative effect of the final regulations on the Federal background
check process and our national security to be speculative. The final
regulations would not categorically exclude off-campus assaults. As
discussed previously, the final regulations applies to off-campus
sexual harassment that occurs under ``the operations of'' the
recipient, or where the recipient exercised substantial control over
the respondent and the context in which the sexual harassment occurred,
or in a building owned or controlled by a student organization
officially recognized by a postsecondary institution. This commenter
appears to have made a series of assumptions that may not be true,
including that a significant number of off-campus assaults not covered
by the final regulations would involve perpetrators subjected to a
Federal background check in the future, and that a significant number
of background checks would fail to uncover relevant information about
sexual misconduct solely because the perpetrator's misconduct was not
covered under Title IX. Again, the Department emphasizes that nothing
in the final regulations prevents recipients from addressing sexual
misconduct that occurs outside their education programs or activities,
nor do the final regulations discourage or prevent a victim from
reporting sexual misconduct to law enforcement or from filing a civil
lawsuit; therefore, numerous avenues exist through which misconduct not
covered under Title IX would be revealed during a Federal background
check of the perpetrator.
With respect to a commenter's assertion that the final regulations
may perversely incentivize recipients to not recognize fraternities and
sororities, the Department believes this conclusion would require
assuming that recipients will make decisions affecting the quality of
life of their students based solely on whether or not recipient
recognition of a student organization such as a fraternity or sorority
would result in sexual harassment that occurs at locations affiliated
with that organization falling under Title IX's scope. The Department
does not make such an assumption, believing instead that recipients
take many factors into account in deciding whether, and under what
conditions, a recipient wishes to officially recognize a student
organization. Whether or not these final regulations alter
postsecondary institutions' decisions about recognizing Greek life
organizations, the Department has determined that the scope of Title IX
extends to the entirety of a recipient's education program and
activity, and with respect to postsecondary institutions, the
Department is persuaded by commenters' contentions that when a
postsecondary institution chooses to officially recognize a student
organization, the recipient has implied to its students and employees
that locations owned by such a student organization are under the
imprimatur of the recipient, whether or not the recipient otherwise
exercises substantial control over such a location.
The Department believes there is a fundamental distinction between
Title IX, and workplace policies that may exist in the corporate world.
Title IX has clear jurisdictional application to education programs or
activities, and the Department does not have authority to extend Title
IX's application. By contrast, corporations may have more flexibility
in crafting their own rules and policies to reflect their values and
the needs of their employees and customers. Further, Title VII does not
necessarily deem actionable all sexual harassment committed by
employees regardless of the location or context of the harassment.\874\
These final regulations tether sexual harassment to a recipient's
education program or activity in a similar manner to the way courts
tether sexual harassment to a workplace under an employer's
control.\875\ Regardless of any differences between analyses under
Title VII and Title IX, we emphasize that recipients retain discretion
under the final regulations to address sexual misconduct that falls
outside the recipient's education program or activity through their own
disciplinary system and by offering supportive
[[Page 30200]]
measures to complainants reporting such misconduct.
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\874\ See, e.g., Lapka v. Chertoff, 517 F.3d 974, 982-83 (7th
Cir. 2008).
\875\ The Department adds to Sec. 106.44(a) the statement that
``education program or activity'' includes locations, events, or
circumstances over which the recipient exercised substantial control
over both the respondent and the context in which the harassment
occurs. This helps clarify that even if a situation arises off
campus, it may still be part of the recipient's education program or
activity if the recipient exercised substantial control over the
context and the alleged harasser. While such situations may be fact
specific, recipients must consider whether, for example, a sexual
harassment incident between two students that occurs in an off-
campus apartment (i.e., not a dorm room provided by the recipient)
is a situation over which the recipient exercised substantial
control; if so, the recipient must respond when it has actual
knowledge of sexual harassment or allegations of sexual harassment
that occurred there. At the same time, the Title IX statute and
existing regulations broadly define a recipient's ``program or
activity'' to include (as to schools) ``all of the operations'' of
the school, such that situations that arise on campus are already
part of a school's education program or activity. 20 U.S.C. 1687.
---------------------------------------------------------------------------
The Department acknowledges commenters' citations to Federal court
opinions for the proposition that a recipient may be deliberately
indifferent to sexual harassment that occurred outside the recipient's
control where the complainant has to interact with the respondent in
the recipient's education program or activity, or where the effects of
the underlying sexual assault create a hostile environment in the
complainant's workplace or educational environment. However, with the
changes to the final regulations made in response to commenters'
concerns, the Department believes that we have clarified that sexual
harassment incidents occurring off campus may fall under Title IX. The
statutory and regulatory definitions of ``program or activity'' and the
statements regarding ``substantial control'' and ``buildings owned or
controlled by'' student organizations officially recognized by
postsecondary institutions in Sec. 106.44(a) do not state or imply
that off-campus incidents necessarily fall outside a recipient's
education program or activity. Moreover, complainants can request
supportive measures or an investigation into allegations of conduct
that do not meet Title IX jurisdictional conditions, under a
recipient's own code of conduct.\876\
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\876\ The Department also notes that Sec. 106.45(b)(8) in the
final regulations permits complainants and respondents equally to
appeal a recipient's determination that allegations were subject to
mandatory dismissal under Sec. 106.45(b)(3)(i).
---------------------------------------------------------------------------
Some of the situations in Federal cases cited to by commenters may
have reached similar outcomes under the final regulations. For example,
in Doe v. East Haven Board of Education,\877\ the Second Circuit held
that the plaintiff sufficiently alleged sexual harassment to which the
school was deliberately indifferent where the harassment consisted of
on-campus taunts and name-calling directed at the plaintiff after she
had reported being raped off campus by two high-school boys. The final
regulations would similarly analyze whether sexual harassment (i.e.,
unwelcome conduct on the basis of sex so severe, pervasive, and
objectively offensive that it effectively deprives a complainant of
equal access to education) in the recipient's program or activity
triggered a recipient's response obligations regardless of whether such
sexual harassment stemmed from the complainant's allegations of having
suffered sexual assault (e.g., rape) outside the recipient's program or
activity. Further, whether or not the off-campus rape in that case was
in, or outside, the school's education program or activity, would
depend on the factual circumstances, because as explained above, not
all off-campus sexual harassment is excluded from Title IX coverage.
---------------------------------------------------------------------------
\877\ 200 F. App'x 46, 48 (2d Cir. 2006); Lapka v. Chertoff, 517
F.3d 974, 982-83 (7th Cir. 2008) (the Seventh Circuit reasoned that
the plaintiff sufficiently alleged workplace harassment even though
the alleged rape occurred while the plaintiff and assailant were
socializing after hours in a private hotel room, because the bar was
part of the training facility where the plaintiff and assailant were
required to attend work-related training sessions and thus were on
``official duty'' while at that facility, including the bar located
in the facility, ``so the event could be said to have grown out of
the workplace environment'' and the plaintiff and assailant were
trainees expected to eat and drink at the facility and ``return to
dormitories and hotel rooms provided by'' the employer such that
``[e]mployees in these situations can be expected to band together
for society and socialize as a matter of course'' justifying the
Court's conclusion that the plaintiff had alleged sexual harassment
(rape) that arose in the context of a workplace environment and to
which the employer had an obligation to respond). Although Lapka was
a case under Title VII, the final regulations would similarly
analyze whether sexual harassment occurred in the school's program
or activity by inquiring whether the school exercised substantial
control over the context of the harassment and the alleged harasser.
---------------------------------------------------------------------------
Contrary to commenters' assertions, the Supreme Court in Gebser did
not dispense with the program or activity limitation or declare that
where the harassment occurred did not matter. The facts at issue in the
Gebser case involved teacher-on-student harassment that consisted of
both in-class sexual comments directed at the plaintiff as well as a
sexual relationship that began when the respondent-teacher visited the
plaintiff's home ostensibly to give her a book.\878\ The Supreme Court
in Gebser emphasized that a school district needs to be aware of
discrimination (in the form of sexual harassment) ``in its programs''
and emphasized that a teacher's sexual abuse of a student ``undermines
the basic purposes of the educational system'' \879\ thereby implicitly
recognizing that a teacher's sexual harassment of a student is likely
to constitute sexual harassment ``in the program'' of the school even
if the harassment occurs off campus. Nothing in the final regulations
contradicts this premise or conclusion; Sec. 106.44(a) clarifies that
a recipient's education program or activity includes circumstances over
which a recipient has substantial control over the context of the
harassment and the respondent, and a teacher employed by a recipient
who visits a student's home ostensibly to give the student a book but
in reality to instigate sexual activity with the student could
constitute sexual harassment ``in the program'' of the recipient such
that a recipient with actual knowledge of that harassment would be
obligated under the final regulations to respond. Similarly, the
Supreme Court in Davis viewed the perpetrator's status as a teacher in
Gebser as relevant to concluding that the sexual harassment was
happening ``under'' the recipient's education program or activity.\880\
We reiterate that the final regulations do not distinguish between
sexual harassment occurring ``on campus'' versus ``off campus'' but
rather state that Title IX covers sexual harassment that occurs in a
recipient's education program or activity. The final regulations follow
the Gebser/Davis approach to Title IX's statutory reference to
discrimination in an education program or activity; sexual harassment
by a teacher as opposed to harassment by a fellow student may, as
indicated in Gebser and Davis, affect whether the sexual harassment
occurred ``under any education program or activity.'' \881\ This is a
matter that recipients must consider when training Title IX personnel
on the ``scope of the
[[Page 30201]]
recipient's education program or activity'' pursuant to Sec.
106.45(b)(1)(iii).
---------------------------------------------------------------------------
\878\ Gebser, 524 U.S. at 277-78.
\879\ Gebser, 524 U.S. at 286 (``As a general matter, it does
not appear that Congress contemplated unlimited recovery in damages
against a funding recipient where the recipient is unaware of
discrimination in its programs.'') (emphasis added); id. at 289
(reasoning that a school's liability in a private lawsuit should
give the school opportunity to know of the violation and correct it
voluntarily similarly to the way the Title IX statute directs
administrative agencies to give a school that opportunity to
voluntarily correct violations, and the Court stated ``Presumably, a
central purpose of requiring notice of the violation `to the
appropriate person' and an opportunity for voluntary compliance
before administrative enforcement proceedings can commence is to
avoid diverting education funding from beneficial uses where a
recipient was unaware of discrimination in its programs and is
willing to institute prompt corrective measures.'') (emphasis
added); id. at 290 (``we hold that a damages remedy will not lie
under Title IX unless an official who at a minimum has authority to
address the alleged discrimination and to institute corrective
measures on the recipient's behalf has actual knowledge of
discrimination in the recipient's programs and fails adequately to
respond.'') (emphasis added); id. at 292 (``No one questions that a
student suffers extraordinary harm when subjected to sexual
harassment and abuse by a teacher, and that the teacher's conduct is
reprehensible and undermines the basic purposes of the educational
system.'') (emphasis added).
\880\ Davis, 526 U.S. at 652-53 (``Moreover, the provision that
the discrimination occur `under any education program or activity'
suggests that the behavior be serious enough to have the systemic
effect of denying the victim equal access to an educational program
or activity. . . . The fact that it was a teacher who engaged in
harassment in Franklin and Gebser is relevant. The relationship
between the harasser and the victim necessarily affects the extent
to which the misconduct can be said to breach Title IX's guarantee
of equal access to educational benefits and to have a systemic
effect on a program or activity.'').
\881\ Id. at 652.
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Both the 2001 Guidance and 2017 Q&A recognize the statutory
language of ``education program or activity'' as a limitation on sexual
harassment to which a recipient must respond. For example, the 2001
Guidance notes that ``Title IX applies to all public and private
educational institutions that receive Federal funds'' and states that
the ``education program or activity of a school includes all of the
school's operations'' which means ``that Title IX protects students in
connection with all of the academic, educational, extra-curricular,
athletic, and other programs of the school, whether they take place in
the facilities of the school, on a school bus, at a class or training
program sponsored by the school at another location, or elsewhere.''
\882\ Similarly, the 2017 Q&A expressly acknowledges that a recipient's
obligation to respond to sexual harassment is confined to harassment
that occurs in the recipient's education program or activity, citing
statutory and regulatory definitions of ``recipient,'' ``operations,''
and ``program or activity.'' \883\ The final regulations similarly rely
on preexisting statutory and regulatory definitions of a recipient's
``program or activity'' and add a statement that ``education program or
activity'' includes circumstances over which the recipient exercised
substantial control. The withdrawn 2011 Dear Colleague Letter departed
from the Department's longstanding acknowledgement that a recipient's
response obligations are conditioned on sexual harassment that occurs
in the recipient's education program or activity; \884\ these final
regulations return to the Department's approach in the 2001 Guidance,
which mirrors the Supreme Court's approach to ``education program or
activity'' as a jurisdictional condition that promotes a recipient's
obligation under Title IX to provide education programs or activities
free from sex discrimination. Like the 2001 Guidance, the final
regulations approach the ``education program or activity'' condition as
extending to circumstances over which recipients have substantial
control, and not only to incidents that occur ``on campus.'' We
reiterate that nothing in the final regulations precludes a recipient
from offering supportive measures to a complainant who reports sexual
harassment that occurred outside the recipient's education program or
activity, and any sexual harassment that does occur in an education
program or activity must be responded to even if it relates to, or
happens subsequent to, sexual harassment that occurred outside the
education program or activity.
---------------------------------------------------------------------------
\882\ 2001 Guidance at 2-3 (internal quotation marks omitted)
(citing to 20 U.S.C. 1687, codification of the amendment to Title IX
regarding scope of jurisdiction, enacted by the Civil Rights
Restoration Act of 1987, and to 65 FR 68049 (November 13, 2000), the
Department's amendment of the Title IX regulations to incorporate
the statutory definition of ``program or activity.'').
\883\ 2017 Q&A at 1, fn. 3.
\884\ 2011 Dear Colleague Letter at 4 (``Schools may have an
obligation to respond to student-on-student sexual harassment that
initially occurred off school grounds, outside a school's education
program or activity. If a student files a complaint with the school,
regardless of where the conduct occurred, the school must process
the complaint in accordance with its established procedures. Because
students often experience the continuing effects of off-campus
sexual harassment in the educational setting, schools should
consider the effects of the off-campus conduct when evaluating
whether there is a hostile environment on campus. For example, if a
student alleges that he or she was sexually assaulted by another
student off school grounds, and that upon returning to school he or
she was taunted and harassed by other students who are the alleged
perpetrator's friends, the school should take the earlier sexual
assault into account in determining whether there is a sexually
hostile environment. The school also should take steps to protect a
student who was assaulted off campus from further sexual harassment
or retaliation from the perpetrator and his or her associates.'')
(emphasis added); see also the withdrawn 2014 Q&A at 29-30.
---------------------------------------------------------------------------
Although the 2001 Guidance and 2017 Q&A frame actionable sexual
harassment as harassment that creates a ``hostile environment,'' \885\
the final regulations utilize the more precise interpretation of Title
IX's scope articulated by the Supreme Court in Davis: That a recipient
must respond to sexual harassment that is so severe, pervasive, and
objectively offensive that it effectively denies a person equal access
to education.\886\ The use of the phrase ``hostile environment'' in the
2001 Guidance and 2017 Q&A does not mean that those guidance documents
ignored the ``education program or activity'' limitation referenced in
the Title IX statute; whether framed as a ``hostile environment'' (as
in Department guidance) or as ``effective denial of a person's equal
access'' to education (as in these final regulations), sexual
harassment is a form of sex discrimination actionable under Title IX
when it occurs in an education program or activity.
---------------------------------------------------------------------------
\885\ 2001 Guidance at 3; 2017 Q&A at 1. Although footnote 3 of
the 2017 Q&A states that ``[s]chools are responsible for redressing
a hostile environment that occurs on campus even if it relates to
off-campus activities,'' this statement was intended to convey that
a recipient may not ignore sexual harassment that occurs in its
program or activity just because the parties involved may also have
experienced an incident of sexual harassment outside its program or
activity. See also Doe v. East Haven Bd. of Educ., 200 F. App'x 46,
48 (2d Cir. 2006) (holding that plaintiff sufficiently alleged
sexual harassment to which the school was deliberately indifferent
where the harassment consisted of on-campus, sexualized taunts and
name-calling directed at the plaintiff after she had reported being
raped by two high-school boys outside the school's program or
activity).
\886\ See also the ``Sexual Harassment'' subsection of the
``Section 106.30 Definitions'' section of this preamble for further
discussion of the ``effective denial of equal access'' element in
the final regulations' definition of sexual harassment and the
relationship between that element and the concept of hostile
environment.
---------------------------------------------------------------------------
Because the final regulations do not exclude ``off campus'' sexual
harassment from coverage under Title IX and instead take the approach
utilized in the 2001 Guidance and applied by the Supreme Court in
Davis, under which off campus sexual harassment may be in the scope of
a recipient's education program or activity, the Department disagrees
that these final regulations conflict with the Department's recent
enforcement action with respect to holding Chicago Public Schools
accountable for failure to appropriately respond to certain off-campus
sexual assaults.
Changes: Section 106.44(a) is revised to state that ``education
program or activity'' includes locations, events, or circumstances over
which the recipient exercised substantial control over both the
respondent and the context in which the harassment occurs, and also
includes any building owned or controlled by a student organization
that is officially recognized by a postsecondary institution. Section
106.45(b)(1)(iii) is revised to include training for Title IX
Coordinators, investigators, decision-makers, and persons who
facilitate informal resolutions on ``the scope of the recipient's
education program or activity.'' Section 106.45(b)(3)(i) is revised to
expressly provide that a mandatory dismissal of allegations in a formal
complaint about conduct not occurring in the recipient's education
program or activity is ``for purposes of title IX or [34 CFR part 106];
such a dismissal does not preclude action under another provision of
the recipient's code of conduct.'' Section 106.45(b)(10)(i)(D) is
revised to require recipients to post materials used to train Title IX
personnel on the recipient's website, or if the recipient does not have
a website, to make such materials available for inspection and review
by members of the public.
Online Sexual Harassment
Comments: One commenter cited case law for the proposition that
Title IX does not cover online or digital
[[Page 30202]]
conduct.\887\ Other commenters cited cases holding that recipients may
be liable under Title IX for failing to adequately address online
harassment.\888\ A few commenters argued that the NPRM's approach to
education program or activity is inconsistent with the Department's
past practice and guidance documents, such as guidance issued in 2010
which acknowledged that cell phone and internet communications may
constitute actionable harassment. Many commenters were concerned the
NPRM would exclude online sexual harassment due to the education
program or activity condition in Sec. 106.44(a), and cited studies
showing the prevalence and effects of online harassment and cyber-
bullying on victims.\889\ Commenters argued that it was unclear to what
extent the NPRM would cover online harassment and suggested that the
Department more broadly define ``program or activity'' to include
student interactions that are enabled by recipients, such as online
harassment between students using internet access provided by the
recipient. Commenters argued that the final regulations should
explicitly address cyber-bullying and electronic speech. Some
commenters suggested that excluding online misconduct may conflict with
State law; for example, commenters stated that New Jersey law includes
harassment occurring online.
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\887\ Commenters cited, e.g.: Yeasin v. Durham, 719 F. App'x 844
(10th Cir. 2018); Gordon v. Traverse City Area Pub. Sch., 686 F.
App'x 315, 324 (6th Cir. 2017).
\888\ Commenters cited: Feminist Majority Found. v. Hurley, 911
F.3d 674 (4th Cir. 2018); S.J.W. v. Lee's Summit R-7 Sch. Dist., 696
F.3d 771, 777 (8th Cir. 2012); Layshock v. Hermitage Sch. Dist., 650
F.3d 205, 220-221 (3d Cir. 2011); Kowalski v. Berkeley Cnty. Sch.,
652 F.3d 565, 573 (4th Cir. 2011); Sypniewski v. Warren Hill Reg'l
Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002).
\889\ Commenters cited, e.g.: American Association of University
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' concerns about
whether Title IX applies to sexual harassment that occurs
electronically or online. We emphasize that the education program or
activity jurisdictional condition is a fact-specific inquiry applying
existing statutory and regulatory definitions of ``program or
activity'' to the situation; however, for recipients who are
postsecondary institutions or elementary and secondary schools as those
terms are used in the final regulations, the statutory and regulatory
definitions of ``program or activity'' encompass ``all of the
operations of'' such recipients, and such ``operations'' may certainly
include computer and internet networks, digital platforms, and computer
hardware or software owned or operated by, or used in the operations
of, the recipient.\890\ Furthermore, the final regulations revise Sec.
106.44(a) to specify that an education program or activity includes
circumstances over which the recipient exercised substantial control
over both the respondent and the context in which the harassment
occurred, such that the factual circumstances of online harassment must
be analyzed to determine if it occurred in an education program or
activity. For example, a student using a personal device to perpetrate
online sexual harassment during class time may constitute a
circumstance over which the recipient exercises substantial control.
---------------------------------------------------------------------------
\890\ 20 U.S.C. 1687; 34 CFR 106.2(h).
---------------------------------------------------------------------------
Contrary to the claims made by some commenters, the approach to
``education program or activity'' contained in the final regulations,
and in particular its potential application to online harassment, would
not necessarily conflict with the Department's previous 2010 Dear
Colleague Letter addressing bullying and harassment. The Department's
2010 guidance made a passing reference that harassing conduct may
include ``use of cell phones or the internet,'' and the Department's
position has not changed in this regard.\891\ These final regulations
apply to sexual harassment perpetrated through use of cell phones or
the internet if sexual harassment occurred in the recipient's education
program or activity. As explained in the ``Adoption and Adaption of the
Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, these final regulations adopt and adapt the Gebser/Davis
framework of actual knowledge and deliberate indifference, in contrast
to the rubric in the 2010 Dear Colleague Letter on bullying and
harassment; however, these final regulations appropriately address
electronic, digital, or online sexual harassment by not making sexually
harassing conduct contingent on the method by which the conduct is
perpetrated. Additionally, even if a recipient is not required to
address certain misconduct under these final regulations, these final
regulations expressly allow a recipient to address such misconduct
under its own code of conduct.\892\ Accordingly, there may not be any
conflict between these final regulations with respect to State laws
that explicitly cover online harassment.
---------------------------------------------------------------------------
\891\ U.S. Dep't. of Education, Office for Civil Rights, Dear
Colleague Letter: Harassment and Bullying at 2 (Oct. 26, 2010),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
\892\ E.g., Sec. 106.45(b)(3)(i).
---------------------------------------------------------------------------
Changes: None.
Consistency With Title IX Statutory Text
Comments: Some commenters opposed the NPRM's approach to
``education program or activity'' by arguing that it conflicts with
Title IX's statutory text. Commenters contended that the NPRM is an
unambiguously incorrect interpretation of Title IX under the deference
doctrine articulated by the Supreme Court in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc.,\893\ and will thus be given no
judicial deference. One such commenter asserted that the Title IX
statute has three distinctive protective categories, such that no
person on the basis of sex can be: (1) Excluded from participation in;
(2) denied the benefits of; or (3) subjected to discrimination under
any education program or activity. The commenter argued that the first
clause includes off-campus conduct, such as male students on a public
street blocking female students from accessing campus. This commenter
argued that the third clause prohibits discrimination ``under,'' and
not ``in'' or ``within,'' a recipient's education program or activity
and is violated whenever women or girls are subjected to more adverse
conditions than males. This commenter asserted that the Title IX
statutory text does not depend on where the underlying conduct occurs,
but rather focuses on the subsequent hostile educational environment
that such misconduct can cause.
---------------------------------------------------------------------------
\893\ 467 U.S. 837 (1984).
---------------------------------------------------------------------------
Another commenter argued that requiring recipients to treat off-
campus sexual misconduct differently from on-campus sexual misconduct
can itself violate Title IX.
Discussion: The Department acknowledges the analysis offered by at
least one commenter that the Title IX statute, by its own text, has
three distinct protective categories and the commenter's argument that
the ``subjected to discrimination'' prong is violated whenever females
are subjected to more adverse conditions than males. As explained
below, the Department elects to adopt the analysis applied by the
Supreme Court rather than the analysis provided by the commenter.
In Davis, the Supreme Court acknowledged that Title IX protects
students from ``discrimination'' and from being ``excluded from
participation in'' or ``denied the benefits of'' any education program
or activity receiving
[[Page 30203]]
Federal financial assistance.\894\ The Davis Court characterized sexual
harassment as a form of sex discrimination under Title IX,\895\ and
reasoned that whether a recipient is liable for sexual harassment thus
turns on whether the recipient can be said to have ``subjected''
students to sex discrimination in the form of sexual harassment.\896\
The Davis Court further reasoned, ``Moreover, because the harassment
must occur `under' `the operations of' a funding recipient, see 20
U.S.C. 1681(a); Sec. 1687 (defining `program or activity'), the
harassment must take place in a context subject to the school
district's control. . . . These factors combine to limit a recipient's
damages liability to circumstances wherein the recipient exercises
substantial control over both the harasser and the context in which the
known harassment occurs.'' \897\
---------------------------------------------------------------------------
\894\ Davis, 526 U.S. at 650.
\895\ Id. (``Having previously determined that `sexual
harassment' is `discrimination' in the school context under Title
IX, we are constrained to conclude that student-on-student sexual
harassment, if sufficiently severe, can likewise rise to the level
of discrimination actionable under the statute.'').
\896\ Id. (``The statute's plain language confirms the scope of
prohibited conduct based on the recipient's degree of control over
the harasser and the environment in which the harassment occurs. If
a funding recipient does not engage in harassment directly, it may
not be liable for damages unless its deliberate indifference
`subjects' its students to harassment. That is, the deliberate
indifference must, at a minimum, `cause [students] to undergo'
harassment or `make them liable or vulnerable' to it.'') (internal
citations to dictionary references omitted).
\897\ Id. at 644-45.
---------------------------------------------------------------------------
Adopting the Supreme Court's analysis of the appropriate
application of the Title IX statute's ``program or activity'' language
in the context of sexual harassment, the final regulations treat sexual
harassment as a form of sex discrimination under Title IX and hold
recipients accountable for responding to sexual harassment that took
place in a context under the recipient's control. In interpreting
``education program or activity'' in the final regulations, the
Department will look to the definitions of ``program or activity''
provided by Title IX \898\ and existing Title IX regulations,\899\ and
has revised Sec. 106.44(a) of the final regulations to clarify that
``education program or activity'' includes locations, events, or
circumstances over which the recipient exercised substantial control
over both the respondent and the context in which the harassment
occurs, as well as on-campus and off-campus buildings owned or
controlled by student organizations officially recognized by
postsecondary institutions. The Department notes that the commenter's
hypothetical, concerning male students on a public street blocking
female students from accessing campus, would require a fact-specific
analysis but could constitute sexual harassment in the recipient's
education program or activity if such an incident occurred in a
location, event, or circumstance over which the recipient exercised
substantial control.
---------------------------------------------------------------------------
\898\ 20 U.S.C. 1687 (defining ``program or activity'').
\899\ 34 CFR 106.2(h) (defining ``program or activity''); 34 CFR
106.2(i) (defining ``recipient''); 34 CFR 106.31(a) (referring to
``any academic, extracurricular, research, occupational training, or
other education program or activity operated by a recipient which
receives Federal financial assistance'').
---------------------------------------------------------------------------
Contrary to the claims made by some commenters, and as discussed
above, the final regulations would not necessarily require recipients
to treat off-campus misconduct differently from on-campus misconduct.
Title IX does not create, nor did Congress intend for it to create,
open-ended liability for recipients in addressing sexual harassment.
Rather, the statute imposed an important jurisdictional limitation
through its reference to education programs or activities. Recipients
are responsible under Title IX for addressing sex discrimination,
including sexual harassment, in their ``education program or
activity,'' but a recipient's education program or activity may extend
to locations, events, and circumstances ``off campus.''
Changes: We have revised Sec. 106.44(a) to state that for purposes
of Sec. Sec. 106.30, 106.44, and 106.45, ``education program or
activity'' includes locations, events, or circumstances over which the
respondent had substantial control over both the respondent and the
context in which the sexual harassment occurred, and also includes
buildings owned or controlled by student organizations that are
officially recognized by a postsecondary institution.
Constitutional Equal Protection
Comments: One commenter contended that the NPRM's approach to
``education program or activity'' may violate the Fourteenth Amendment
because experiencing off-campus or online sexual victimization
detrimentally affects student-survivors' education, and the Fourteenth
Amendment guarantees these students equal protection, yet, the
commenter argued, the NPRM would leave these students outside Title
IX's reach and deprived of equal protection.
Discussion: We disagree with the contention that the application in
the final regulations of ``education program or activity'' as a
jurisdictional condition may violate the Equal Protection Clause of the
Fourteenth Amendment. The Department reiterates that the ``education
program or activity'' limitation in the final regulations does not
create or apply a geographic test, does not draw a line between ``off
campus'' and ``on campus,'' and does not create a distinction between
sexual harassment occurring in person versus online. Moreover, under
these final regulations, any individual alleged to be a victim of
conduct that could constitute sexual harassment is a ``complainant''
\900\ to whom the recipient must respond in a prompt, non-deliberately
indifferent manner; in that manner, all students are treated equally
without distinction under the final regulations based on, for example,
where a student resides or spends time. The distinction of which some
commenters are critical, then, is not a distinction drawn among groups
or types of students, but rather is a distinction drawn (for reasons
explained previously) between incidents that are, or are not, under the
control of the recipient. The Department further notes that even if
commenters correctly characterize the distinction as being made between
some students (who suffer harassment in an education program or
activity) and other students (who suffer harassment outside an
education program or activity), the applicable level of scrutiny under
the Equal Protection Clause to any differential treatment under such
circumstances would be the rational basis test.\901\ A heightened level
of scrutiny would apply where a suspect or quasi-suspect classification
is involved, such as race or sex.\902\ But, as here, where no such
suspect or quasi-suspect classification is involved, the final
regulations may treat students differently due to the circumstances in
which the misconduct occurred, and the rational basis test applies.
Under the rational basis test, a law or governmental action is valid
under the Equal Protection Clause so long as it is rationally related
to a legitimate government interest.\903\ With Title IX,
[[Page 30204]]
Congress made a rational determination that recipients should be held
liable for misconduct over which they had some level of control. The
statute's reference to ``education program or activity'' reflects this
important limitation. To expose recipients to liability for misconduct
wholly unrelated to circumstances over which they have control would
contravene congressional intent and lead to potentially unlimited
exposure to loss of Federal funds. The Department believes that the use
of ``education program or activity'' in Sec. 106.44(a) appropriately
reflects both statutory text and congressional intent, and furthers the
legitimate government interest of ensuring liability is not open-ended
and has reasonable jurisdictional limitations.
---------------------------------------------------------------------------
\900\ Section 106.30 (defining a ``complainant'' as any
individual who is alleged to be the victim of conduct that could
constitute sexual harassment).
\901\ See F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313
(1993).
\902\ See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227
(1995) (applying strict scrutiny under the Equal Protection Clause
to assess classifications based on race); Craig v. Boren, 429 U.S.
190, 197 (1976) (applying intermediate scrutiny under the Equal
Protection Clause to assess classifications based on sex).
\903\ See Beach Commc'ns, Inc., 508 U.S. at 313 (holding that in
areas of social and economic policy, statutory classification that
neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that
could provide rational basis for classification).
---------------------------------------------------------------------------
Changes: None.
Institutional Autonomy and Litigation Risk
Comments: A number of commenters stated that the Department's
approach to ``education program or activity'' would undermine recipient
autonomy and expose recipients to litigation risk. Commenters argued
that recipients should have the right to determine the standards of
behavior to which their students must adhere, both on campus and off
campus, and that the NPRM would infringe on institutional academic
prerogatives and independence. Commenters expressed concern that the
NPRM would make recipients vulnerable to litigation from students
seeking damages for off-campus assaults, including because recipients
could be accused of arbitrarily deciding which cases to investigate and
which cases to declare outside their jurisdiction.
Discussion: We acknowledge the importance of recipient discretion
and flexibility to determine the recipient's own standards of conduct.
However, Congress created a clear mandate in Title IX and vested the
Department with the authority to administratively enforce Title IX to
effectuate the statute's twin purposes: To ``avoid the use of Federal
resources to support discriminatory practices'' and to ``provide
individual citizens effective protection against those practices.''
\904\ Importantly, nothing in the final regulations prohibits
recipients from using their own disciplinary processes to address
misconduct occurring outside their education program or activity.\905\
Indeed, this flexibility for recipients to address sexual misconduct
that falls outside the scope of Title IX, including sexual misconduct
that is outside the recipient's education program or activity, permits
recipients to reduce the litigation risk perceived by some commenters.
As discussed above, and contrary to the claims made by many commenters,
the final regulations do not distinguish between on-campus misconduct
and off-campus misconduct. Off-campus sexual harassment is not
categorically excluded from Title IX coverage. Recipients' decisions to
investigate formal complaints regarding allegations of sexual
harassment cannot be arbitrary under the final regulations; rather, a
recipient must investigate a formal complaint where the alleged sexual
harassment (meeting the definition in Sec. 106.30) occurred in the
recipient's education program or activity, against a person in the
United States.
---------------------------------------------------------------------------
\904\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
\905\ In response to many commenters' concerns that Sec.
106.45(b)(3) was understood to prevent recipients from addressing
misconduct that occurred outside an education program or activity,
the Department has revised Sec. 106.45(b)(3)(i) in the final
regulations to expressly state that mandatory dismissal due to the
alleged conduct occurring outside an education program or activity
is only a dismissal for purposes of Title IX and does not preclude
the recipient from addressing the conduct through other codes of
conduct.
---------------------------------------------------------------------------
Changes: None.
Requests for Clarification
Comments: Commenters raised questions regarding the Department's
approach to the ``education program or activity'' condition. Commenters
requested clarity as to events that begin off campus but have effects
on campus, such as interaction among students, faculty, and staff
outside formal professional or academic activities. These commenters
were concerned that, in such circumstances, it may be challenging for
an institution to clearly and consistently identify what conduct has
occurred strictly within its education program and which conduct is
beyond its educational program. One commenter sought clarification as
to what, if any, are the Department's expectations for a recipient's
conduct processes that address off-campus sexual misconduct. This
commenter asserted that Title IX prohibits discrimination ``under'' an
education program or activity, but that Sec. 106.44(a) and proposed
Sec. 106.44(b)(4) referred to sexual harassment ``in'' an education
program or activity, while proposed Sec. 106.45(b)(3) referred to
sexual harassment ``within'' a program or activity. The commenter
inquired as to whether ``in'' differs from ``within'' in those proposed
sections, and whether those terms mean something different than
``under'' used in the Title IX statute, and if so what are the
differences in meaning. The commenter asserted that Title IX prohibits
``discrimination'' under an education program or activity and that
Sec. 106.44(a) and proposed Sec. 106.44(b)(2) refer to ``sexual
harassment'' in an education program or activity, and asked if
recipients would be required to respond where sexual harassment
occurred outside an education program or activity but resulted in
discrimination under the education program or activity. This commenter
stated that under Title IX an individual may not be ``excluded'' from a
federally-assisted program or activity on the basis of sex, and asked
whether recipients must address sexual harassment that did not occur
``in'' its education program or activity but nevertheless effectively
excluded the victim from equal access to it.
Discussion: The Department appreciates the questions raised by
commenters regarding the application of ``education program or
activity'' in Sec. 106.44(a) of the final regulations. The final
regulations do not impose requirements on a recipient's code of conduct
processes addressing misconduct occurring outside the recipient's
education program or activity, and do not govern the recipient's
decisions to address or not address such misconduct. The Department's
regulatory authority is limited to the scope of Title IX: Ensuring that
recipients of Federal funding operate education programs or activities
free from sex discrimination. For the final regulations to apply,
sexual harassment (a form of sex discrimination) must occur in the
recipient's education program or activity. As explained previously,
nothing in the final regulations precludes a recipient from offering
supportive measures to a complainant who reports sexual harassment that
occurred outside the recipient's education program or activity, and any
sexual harassment or sex discrimination that does occur in an education
program or activity must be responded to even if it relates to, or
happens subsequent to, sexual harassment that occurred outside the
education program or activity.
Whether sexual harassment occurs in a recipient's education program
or activity is a fact-specific inquiry. The key questions are whether
the recipient exercised substantial control over the respondent and the
context in which the incident occurred. There is no bright-
[[Page 30205]]
line geographic test, and off-campus sexual misconduct is not
categorically excluded from Title IX protection under the final
regulations.\906\ Recognizing that recipients need to carefully
consider this matter, the Department revised Sec. 106.45(b)(1)(iii) to
require training for Title IX Coordinators, investigators, decision-
makers, and persons who facilitate informal resolution processes on
``the scope of the recipient's education program or activity.''
---------------------------------------------------------------------------
\906\ See the ``Clery Act'' subsection of the ``Miscellaneous''
section of this preamble for discussion regarding the distinctive
purposes of Clery Act geography versus Title IX coverage of
education programs or activities; see also revised Sec. 106.44(a)
including in an ``education program or activity'' any building owned
or controlled by a student organization that is officially
recognized by a postsecondary institution.
---------------------------------------------------------------------------
In response to a commenter's question regarding the NPRM's use of
the terms ``in,'' ``within,'' and ``under'' an education program or
activity, and whether those terms are intended to have different
meanings, the Department has replaced ``within'' with ``in'' throughout
the final regulations, thus making all provisions consistent with the
reference to ``in'' contained in Sec. 106.44(a). We also wish to
clarify that the final regulations' use of the term ``in'' is meant to
be interchangeable with the Title IX statute's use of ``under''; the
Department gives the same meaning to these prepositions, and notes that
the Supreme Court in Davis referenced harassment ``under'' the
operations of (i.e., the program or activity of) a recipient and
harassment that occurred ``in'' a context subject to the recipient's
control seemingly interchangeably.\907\
---------------------------------------------------------------------------
\907\ Davis, 526 U.S. at 645 (``Moreover, because the harassment
must occur under the operations of' a funding recipient . . . the
harassment must take place in a context subject to the school
district's control'') (internal quotation marks and citations
omitted; emphasis added).
---------------------------------------------------------------------------
Changes: The final regulations consistently use ``in'' an education
program or activity rather than ``within.''
Section 106.44(a) ``Against a Person in the U.S.''
Impact on Study Abroad Participants
Comments: Several commenters asserted that the NPRM would endanger
students studying abroad, because the final regulations apply only to
sexual harassment that occurs against a person in the United States.
Commenters argued that when recipients offer students study abroad
opportunities, recipients should still have responsibility to ensure
student safety and well-being. Commenters acknowledged that Congress
may not have contemplated studying abroad or recipients having
satellite campuses across the globe when drafting Title IX in the
1970s. However, commenters argued that international experiences are
increasingly common and critical components of education today,
particularly in higher education, and that some schools require
students in certain academic programs to study abroad. Commenters noted
that even the Federal government, on the U.S. State Department website,
encourages students to have international exposure to compete in a
globalized society. Commenters argued that it would be absurd for the
Federal government to encourage international exposure for students and
not protect them in the process because studying abroad is necessary
for some majors and to prepare for certain careers. Commenters cited
studies suggesting study abroad increases the risk for sexual
misconduct against female students and showing how students had to
alter their career paths in the aftermath of sexual misconduct
experienced abroad.\908\ One commenter stated that harassment abroad,
such as by institution-employed chaperones, can derail victims' ability
to complete their education at their home institution in the United
States. This commenter stated that for the Department to interpret
Title IX as providing no recourse for such students is impossible to
imagine. Commenters asserted that the NPRM tells bad actors they can
get away with sexual misconduct in foreign programs. Commenters
asserted that study abroad students are already uniquely vulnerable and
less likely to report to foreign local authorities because, for
example, they may be unfamiliar with the foreign legal system, they
share housing with the perpetrators, and there may be language
barriers, fear of retaliation or social isolation, and fewer available
support services. Commenters further argued that because crime
occurring overseas cannot be prosecuted in the U.S, filing a Title IX
report with the recipient might be the survivor's only option.
Commenters contended that the NPRM may have the effect of discouraging
students from studying abroad and learning about foreign cultures and
languages which would run contrary to the fundamental purpose of
education to foster curiosity and discovery.
---------------------------------------------------------------------------
\908\ Commenters cited, e.g.: Matthew Kimble, et al., Study
Abroad Increases Risk for Sexual Assault in Female Undergraduates: A
Preliminary Report, 5 Psychol. Trauma: Theory, Research, Practice, &
Pol'y 5 (2013).
---------------------------------------------------------------------------
Discussion: We acknowledge the concerns raised by many commenters
that the final regulations would not extend Title IX protections to
incidents of sexual misconduct occurring against persons outside the
United States, and the impact that this jurisdictional limitation might
have on the safety of students participating in study abroad programs.
However, by its plain text, the Title IX statute does not have
extraterritorial application. Indeed, 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[.]'' \909\ The Department believes a plain
meaning interpretation of a statute is most consistent with fundamental
rule of law principles, ensures predictability, and gives effect to the
intent of Congress. Courts have recognized a canon of statutory
construction that ``Congress ordinarily intends its statutes to have
domestic, not extraterritorial, application.'' \910\ This canon rests
on presumptions that Congress is mainly concerned with domestic
conditions and seeks to avoid unintended conflicts between our laws and
the laws of other nations.\911\ If Congress intended Title IX to have
extraterritorial application, then it could have made that intention
explicit in the text when it was passed in 1972, and Congress could
amend Title IX to apply to a recipient's education programs or
activities located outside the United States if Congress so chooses.
The Federal government's encouragement of international experiences,
such as study abroad, is not determinative of Title IX's intended
scope. The U.S. Supreme Court most recently acknowledged the
presumption against extraterritoriality in Kiobel v. Royal Dutch
Petroleum \912\ and Morrison v. National Australian Bank.\913\ In
Morrison, the Court reiterated the ``longstanding principle of American
law that legislation of Congress, unless a contrary intent appears, is
meant to apply only within the territorial jurisdiction of the United
States.'' \914\ The Court concluded that ``[w]hen a statute gives no
clear indication of
[[Page 30206]]
extraterritorial application, it has none.'' \915\
---------------------------------------------------------------------------
\909\ 20 U.S.C. 1681(a) (emphasis added).
\910\ Small v. United States, 544 U.S. 385, 388-89 (2005).
\911\ Smith v. United States, 507 U.S. 197, 204 (1993).
\912\ 133 S. Ct. 1659 (2013).
\913\ 561 U.S. 247 (2010).
\914\ Id. at 255.
\915\ Id.
---------------------------------------------------------------------------
Very few Federal cases have addressed whether Title IX applies
extraterritorially to allegations of sex discrimination occurring
abroad, and Federal district courts have reached different results in
these cases.\916\ To date, no Federal circuit has addressed this issue.
Commenters noted that the court in King v. Board of Control of Eastern
Michigan University \917\ applied Title IX to a claim of sexual
harassment occurring overseas during a study abroad program; the
Federal district court reasoned that study abroad programs are
educational operations of the recipient that ``are explicitly covered
by Title IX and which necessarily require students to leave U.S.
territory in order to pursue their education.'' The court emphasized
that Title IX's scope extends to ``any education program or activity''
of a recipient, which presumably would include the recipient's study
abroad programs. While the Department agrees that a recipient's study
abroad programs may constitute education programs or activities of the
recipient, the Department agrees with the rationale applied by a
Federal district court in Phillips v. St. George's University \918\
that regardless of whether a study abroad program is part of a
recipient's education program or activity, Title IX does not have
extraterritorial application. The court in Phillips noted that nothing
in the Title IX statute's plain language indicates that Congress
intended it to apply outside the U.S. and that the plain meaning of
``person in the United States'' suggests that Title IX only applies to
persons located in the United States, even when that person is
participating in a recipient's education program or activity outside
the United States.
---------------------------------------------------------------------------
\916\ See Robert J. Aalberts et al., Studying is Dangerous?
Possible Federal Remedies for Study Abroad Liability, 41 Journal Of
Coll. & Univ. L. 189, 210-13 (2015).
\917\ 221 F. Supp. 2d 783 (E.D. Mich. 2002).
\918\ No. 07-CV-1555, 2007 WL 3407728 (E.D.N.Y. Nov. 15, 2007).
---------------------------------------------------------------------------
Both Phillips and King were decided before the Supreme Court's
Morrison and Kiobel opinions, and the Department doubts that the
rationale applied by the court in King would survive analysis under
those Supreme Court decisions, which emphasized the importance of the
presumption against extraterritoriality of statutes passed by Congress.
We find the Phillips Court's reasoning to be well-founded, especially
in light of the later-decided Supreme Court cases regarding
extraterritoriality, and we believe the jurisdictional limitation on
extraterritoriality contained in the final regulations is wholly
consistent with the text of the Title IX statute and with the
presumption against extraterritoriality recognized numerous times by
the Supreme Court. We further note that the Supreme Court acknowledges
that where Congress intends for its statutes to apply outside the
United States, Congress knows how to codify that intent.\919\ When
Congress has codified such intent in other Federal civil rights laws,
Congress has addressed issues that arise with extraterritorial
application such as potential conflicts with foreign laws and
procedures.\920\ Based on the presumption against extraterritoriality
reinforced by Supreme Court decisions and the plain language in the
Title IX statute limiting protections to persons ``in the United
States,'' the Department believes that the Department does not have
authority to declare that the presumption against extraterritoriality
has been overcome, absent further congressional or Supreme Court
direction on this issue.
---------------------------------------------------------------------------
\919\ E.g., Equal Employment Opportunity Comm'n v. Arabian Am.
Oil Co. (Aramco), 499 U.S. 244, 258 (1991) (``Congress's awareness
of the need to make a clear statement that a statute applies
overseas is amply demonstrated by the numerous occasions on which it
has expressly legislated the extraterritorial application of a
statute.'').
\920\ E.g., Older Americans Act Amendments of 1984, Public Law
98-459, 802, 98 Stat. 1767, 1792 (codified at 29 U.S.C. 623, 630
(amending the Age Discrimination Employment Act of 1967 to apply
outside the United States)); 29 U.S.C. 623(f) (addressing potential
conflicts of laws issues).
---------------------------------------------------------------------------
As a practical matter, we also note that schools may face
difficulties interviewing witnesses and gathering evidence in foreign
locations where sexual misconduct may have occurred. Recipients may not
be in the best position to effectively investigate alleged sexual
misconduct in other countries. Such practical considerations weigh in
favor of the Department looking to Congress to expressly state whether
Congress intends for Title IX to apply in foreign locations.
We emphasize that nothing in these final regulations prevents
recipients from initiating a student conduct proceeding or offering
supportive measures to address sexual misconduct against a person
outside the United States. We have revised Sec. 106.45(b)(3) to
explicitly state that even if a recipient must dismiss a formal
complaint for Title IX purposes because the alleged sexual harassment
did not occur against a person in the U.S., such a dismissal is only
for purposes of Title IX, and nothing precludes the recipient from
addressing the alleged misconduct through the recipient's own code of
conduct. Contrary to claims made by some commenters, it is not true
that the final regulations leave students studying abroad with no
recourse in the event of sexual harassment or sexual assault.
Recipients remain free to adopt disciplinary systems to address sexual
misconduct committed outside the United States, to protect their
students from such harm, and to offer supportive measures such as
mental health counseling or academic adjustments for students impacted
by misconduct committed abroad. As such, we believe the final
regulations will not discourage students from participating in study
abroad programs that may enrich their educational experience.
Changes: None.
Consistency With Federal Law and Departmental Practice
Comments: Some commenters asserted that excluding extraterritorial
application of Title IX would conflict with other Federal laws and past
practice of the Department. One commenter stated that the NPRM is
inconsistent with the Department's own interpretation of the VAWA
amendments to the Clery Act, and argued that carving out conduct
occurring abroad conflicts with Clery Act language regarding
geographical jurisdiction. This commenter argued that if a
postsecondary institution has a separate campus abroad or owns or
controls a building or property abroad that is used for educational
purposes and used by students, the postsecondary institution must
disclose the Clery Act crimes that occur there. The commenter suggested
it would be illogical to require recipients to make such disclosures
and yet not address the same underlying misconduct and that this puts
recipients in a precarious position. Other commenters argued that the
Department should interpret Title IX as protecting persons enrolled in
education programs or activities the recipient conducts or sponsors
abroad, as this interpretation would be consistent with application of
other Federal civil rights laws, such as Title VI, and that the
proposed rules' approach conflicts with the Department's past approach
of requiring recipients to address sexual misconduct that could limit
participation in education programs or activities overseas.
Discussion: We disagree with the commenters who contended that
excluding application of Title IX to sexual misconduct committed
outside the United States raises untenable conflict with the past
practice of the Department and other Federal laws.
[[Page 30207]]
With respect to past practice of the Department, OCR has never
explicitly addressed in any of its guidance whether Title IX has
extraterritorial application. For example, though the withdrawn 2014
Q&A stated that ``[u]nder Title IX, a school must process all
complaints of sexual violence, regardless of where the conduct
occurred, to determine whether the conduct occurred in the context of
an education program or activity,'' \921\ it included an illustrative
list of covered ``[o]ff-campus education programs and activities'' such
as activities occurring at fraternity or sorority houses and school-
sponsored field trips; none of these examples involved an education
program or activity outside the United States.\922\ However, to the
extent that application of the ``person in the United States'' language
in the final regulations departs from past Department guidance or
practice, the Department believes that the jurisdictional limitation on
extraterritoriality contained in the final regulations is reasonable
and wholly consistent with the plain text of the Title IX statute and
with the presumption against extraterritoriality recognized numerous
times by the U.S. Supreme Court.
---------------------------------------------------------------------------
\921\ See 2014 Q&A at 29.
\922\ Id.
---------------------------------------------------------------------------
With respect to other Federal law, we acknowledge that certain
misconduct committed overseas is reportable under the Clery Act where,
for example, the misconduct occurs in a foreign location that a U.S.
institution owns and controls. However, the two laws (Title IX and the
Clery Act) do not have the same scope or purpose,\923\ even though the
two laws often intersect for postsecondary institution recipients who
are also subject to the Clery Act. The Department does not perceive a
conflict between a recipient's obligation to comply with reporting
obligations under the Clery Act and response obligations under Title
IX. As discussed above, both the text of the Title IX statute and case
law on the topic of extraterritoriality make it clear that Title IX
does not apply to sex discrimination against a person outside the
United States.
---------------------------------------------------------------------------
\923\ See ``Background'' subsection in ``Clery Act'' subsection
of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------
With respect to Title VI, this statute, like Title IX, expressly
limits its application to domestic discrimination with its opening
words ``No person in the United States . . .'' and commenters provided
no example of a Federal court or Department application of Title VI to
conduct occurring outside the United States. Nonetheless, the final
regulations are focused on administrative enforcement of Title IX, and
for reasons discussed previously, the Department does not believe that
the statutory text or judicial interpretations of Title IX overcome the
presumption against extraterritoriality that applies to statutes passed
by Congress.
Changes: None.
Constitutional Equal Protection
Comments: One commenter asserted that excluding extraterritorial
application of Title IX may raise Constitutional issues under the
Fourteenth Amendment Equal Protection Clause. This commenter argued
that experiencing sexual victimization in study abroad programs
detrimentally affects the student-survivor's education, and the
Fourteenth Amendment guarantees these students equal protection, yet
the NPRM would leave these students outside the scope of Title IX
protection and deprive them of equal protection.
Discussion: We disagree with the contention that excluding
extraterritorial application of Title IX may violate the Fourteenth
Amendment Equal Protection Clause. As an initial matter, the applicable
level of scrutiny under the Equal Protection Clause to any differential
treatment of students under the Sec. 106.44(a) ``against a person in
the United States'' limitation would be the rational basis test. A
heightened level of scrutiny would apply where a suspect or quasi-
suspect classification is involved, such as race or sex. But, as here,
where no such suspect or quasi-suspect classification is involved and
the final regulations may treat students differently due to the
geographic location of misconduct occurring outside the United States,
the rational basis test applies. Under the rational basis test, a law
or governmental action is valid under the Equal Protection Clause so
long as it is rationally related to a legitimate government
interest.\924\ With respect to Title IX, Congress made a rational
determination that recipients should only be held liable for misconduct
that occurs within the United States. The statute's explicit reference
to ``[n]o person in the United States'' in 20 U.S.C. 1681(a) reflects
this jurisdictional limitation. To hold recipient responsible for
misconduct that took place outside the country could be unrealistically
demanding and lead to open-ended liability, and if Congress intended
that result, then Congress could have expressly stated its intent for
Title IX to apply overseas when enacting Title IX, and can amend Title
IX to so state. The Department believes that the reference to ``against
a person in the United States,'' in Sec. 106.44(a), appropriately
reflects both the plain meaning of the statutory text and congressional
intent that Title IX is focused on eradicating sex discrimination in
domestic education programs or activities. The Department reiterates
that recipients remain free under the final regulations to use their
own disciplinary codes to address sexual harassment committed abroad
and to extend supportive measures to students affected by sexual
misconduct outside the United States.
---------------------------------------------------------------------------
\924\ F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)
(holding that in areas of social and economic policy, statutory
classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably conceivable
state of facts that could provide rational basis for
classification).
---------------------------------------------------------------------------
Changes: None.
Impact on International or Foreign Exchange Students in the U.S.
Comments: A few commenters asserted the proposed rules' limitation
with respect to persons ``in the United States'' may be detrimental to
survivors who are international students whose visa status depends on
academic performance. One commenter expressed concern that Sec.
106.44(a) would exclude foreign exchange students in the U.S. from
Title IX coverage, arguing that the Department should not treat foreign
exchange students as undeserving of the same protection as students
born in the United States.
Discussion: The jurisdictional limitation that sexual harassment
occurred against ``a person in the United States'' is not a limitation
that protects only U.S. citizens; international students or foreign
students studying in the United States are entitled to the same
protections under Title IX as any other individuals. Title IX states
that ``[n]o person in the United States'' shall be subject to
discrimination based on sex. It is well-settled that the word
``person'' in this context includes citizens and non-citizens alike.
Title IX protects every individual in the U.S. against discrimination
on the basis of sex in education programs or activities receiving
Federal financial assistance, regardless of citizenship or legal
residency.
Changes: None.
Section 106.44(a) Deliberate Indifference Standard
Comments: Many commenters were supportive of the deliberate
indifference standard and several argued that it is a sufficient
standard to hold institutions
[[Page 30208]]
accountable for failing to address allegations of sexual misconduct in
an appropriate manner. Many commenters favored the deliberate
indifference standard because it affords institutions greater
discretion to handle Title IX cases in a manner that is most consistent
with the institution's educational mission and level of resources.
In contrast, other commenters advocated for the Department to
return to the ``reasonableness'' standard because it affords recipients
less discretion in their handling of Title IX complaints. These
commenters argued that the reasonableness standard strikes the
necessary balance between forcing schools to make certain policy
changes, such as adopting due process protections in their grievance
procedures, and granting deference. Other commenters argued that
because the deliberate indifference standard is couched in terms of a
safe harbor and coupled with ``highly prescriptive mechanism[s]'' under
Sec. 106.44 and Sec. 106.45 it actually provides recipients with very
little to no discretion in practice.
Many commenters expressed the general concern that lowering the
``reasonableness'' standard to the ``deliberate indifference'' standard
allows schools to investigate fewer allegations, punish fewer bad
actors, and would shield schools from administrative accountability
even in cases where schools mishandle complaints, fail to provide
effective support, and wrongly determine against the weight of the
evidence that the accused was not responsible for the misconduct. One
commenter compared the deliberate indifference standard in the proposed
rules to the application of the deliberate indifference standard in the
prison context under the Eighth Amendment,\925\ arguing that if
finalized the deliberate indifference standard would apply more
stringently in the Title IX context and provide greater institutional
protection to schools because it would be difficult to imagine any
scenario where an institution could be found deliberately indifferent.
---------------------------------------------------------------------------
\925\ Commenter cited: Farmer v. Brennan, 511 U.S. 825 (1994).
---------------------------------------------------------------------------
Some commenters argued that the deliberate indifference standard is
only appropriate in actions for private remedies rather than public
remedies, and asserted that the 2001 Guidance acknowledged this
difference. Some commenters contended that the deliberate indifference
standard is wholly inappropriate in the context of administrative
enforcement, arguing that because the Department only demands equitable
remedies of schools, in the form of policy changes, schools do not
require the additional protection afforded by the deliberate
indifference standard that applies in private lawsuits for money
damages against schools. Other commenters noted that the deliberate
indifference standard has not been adopted in the context of any of the
other civil rights statutes OCR is charged with enforcing.
Various commenters indicated that more clarity is needed with
respect to what the deliberate indifference standard requires of
recipients in the absence of a formal complaint of sexual harassment.
Some commenters requested that the Department include a definition for
deliberate indifference. Many commenters critiqued the language used to
convey the standard, expressing the concern that a school's response
could be indifferent or unreasonable and not be in violation of Title
IX so long as they were not deliberately indifferent or clearly
unreasonable. Some commenters expressed the concern that the word
``deliberate'' implies an intentionality element, asserting that intent
is difficult to prove. Other commenters believed the standard was too
vaguely worded, provided too much deference to the institutions, and
would always be interpreted in favor of the schools. Some commenters
argued that the deliberate indifference standard would effectively deny
the complainant any meaningful process because an institution could
dismiss a complaint after determining that the alleged conduct does not
fall within its interpretation of the sexual harassment definition.
Some suggested the Department revise the proposed rules to impose a
different standard on schools in circumstances where the schools are
responding to allegations against someone in a position of authority,
pointing to the misconduct of Larry Nassar at Michigan State
University.
Discussion: The Department appreciates the commenters' support of
the deliberate indifference standard and agrees that the deliberate
indifference standard affords recipients an appropriate amount of
discretion to address sexual misconduct in our Nation's schools while
holding recipients accountable if their response is clearly
unreasonable in light of the known circumstances. The Department,
however, also recognizes that too much discretion can result in
unintended confusion and uncertainty for both complainants who deserve
a meaningful response and careful consideration of their reports, and
for respondents who should be punished only after they are determined
to be responsible through a fair process. Since the implementing
regulations were first issued in 1975, the Department has observed, and
many stakeholders, including complainants and respondents, have
informed the Department through public comment, that complainants and
respondents have experienced various pitfalls and implementation
problems from a lack of clarity with respect to recipients' obligations
under Title IX. As stated in the proposed regulations, the lack of
clear regulatory standards has contributed to processes that have not
been fair to the parties involved, have lacked appropriate procedural
protections, and have undermined confidence in the reliability of the
outcomes of investigations of sexual harassment complaints. For the
reasons stated in the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section of this preamble, the
Department will maintain the deliberate indifference standard in the
final regulations, with revisions to Sec. 106.44(a) that specify
certain actions a recipient must take in order to not be deliberately
indifferent.
In response to commenters' concerns that the deliberate
indifference standard leaves recipients too much leeway to decide on an
appropriate response, the Department revises Sec. 106.44(a) to include
specific actions that a recipient must take as part of its non-
deliberately indifferent response. Section 106.44(a) requires that a
recipient's response treat complainants and respondents equitably by
offering supportive measures as defined in Sec. 106.30 to a
complainant, and 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 as defined in Sec.
106.30, against a respondent.\926\ As commenters have stated, many
complainants would like supportive measures and do not necessarily wish
to pursue a formal complaint and grievance process, although they
should be informed of the process for filing a formal complaint. The
Department wishes to respect the autonomy and wishes of a complainant
throughout these final regulations, and recipients should also respect
a complainant's wishes to the degree
[[Page 30209]]
possible. Respondents also should not be punished for allegations of
sexual harassment until after a grievance process that complies with
Sec. 106.45, as such a grievance process provides notice of the
allegations to both complainants and respondents as well as a
meaningful opportunity for both complainants and respondents to be
heard. Additionally, the Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as
defined in Sec. 106.30, consider the complainant's wishes with respect
to supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain to the complainant the process for filing a formal
complaint. A recipient should engage in a meaningful dialogue with the
complainant to determine which supportive measures may restore or
preserve equal access to the recipient's education program or activity
without unreasonably burdening the other party, including measures
designed to protect the safety of all parties or the recipient's
educational environment, or deter sexual harassment. A recipient must
offer each complainant supportive measures, and a recipient will have
sufficiently fulfilled its obligation to offer supportive measures as
long as the offer is not clearly unreasonable in light of the known
circumstances, and so long as the Title IX Coordinator has contacted
the complainant to engage in the interactive process also described in
revised Sec. 106.44(a). The Department acknowledges that there may be
specific instances in which it is impossible or impractical to provide
supportive measures. For example, the recipient may have received an
anonymous report or a report from a third party and cannot reasonably
determine the identity of the complainant to promptly contact the
complainant. Similarly, if a complainant refuses the supportive
measures that a recipient offers (and the supportive measures offered
are not clearly unreasonable in light of the known circumstances) and
instead insists that the recipient take punitive action against the
respondent without a formal complaint and grievance process under Sec.
106.45, the Department will not deem the recipient's response to be
clearly unreasonable in light of the known circumstances. If a
recipient does not provide a complainant with supportive measures, then
the recipient must document the reasons why such a response is not
clearly unreasonable in light of the known circumstances, pursuant to
revised Sec. 106.45(b)(10)(ii). Offering supportive measures to every
complainant and documenting why not providing supportive measures is
not clearly unreasonable in light of the known circumstances are some
of the actions required under these final regulations but not expressly
required under case law describing the deliberate indifference
standard. These actions are required as part of the Department's
administrative enforcement of the deliberate indifference standard.
---------------------------------------------------------------------------
\926\ For discussion of what is intended by refraining from
imposing disciplinary sanctions and other actions that are ``not
supportive measures'' against a respondent, see the ``Supportive
Measures'' subsection of the ``Section 106.30 Definitions'' section
of this preamble. We use the same language to describe refraining
from punishing a respondent with following the Sec. 106.45
grievance process, in Sec. 106.45(b)(1)(i).
---------------------------------------------------------------------------
Although we acknowledge the concerns of commenters urging the
Department to abandon the deliberate indifference standard and return
to the reasonableness standard, the Department disagrees for various
reasons. As more fully explained in the ``Deliberate Indifference''
subsection of the ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment'' section, the Department
departs from its prior guidance that set forth a standard more like
reasonableness, or even strict liability, instead of deliberate
indifference. The Department's past guidance and enforcement practices
have taken the position that a recipient's response to sexual
harassment should be judged under a standard that expected the
recipient's response to effectively stop harassment and prevent its
recurrence.\927\ This approach did not provide recipients adequate
flexibility to make decisions affecting their students. For example,
the Department's guidance required recipients to always investigate any
report of sexual harassment, even when the complainant only wanted
supportive measures and did not want an investigation.\928\ Such a
rigid requirement to investigate every report of sexual harassment in
every circumstance intrudes into complainants' privacy without concern
for complainants' autonomy and wishes and, thus, may chill reporting of
sexual harassment. Additionally, the Department's past guidance did not
distinguish between an investigation that leads to the imposition of
discipline and an inquiry to learn more about a report of sexual
harassment.\929\ Deliberate indifference provides appropriate
flexibility for recipients while holding recipients accountable for
meaningful responses to sexual harassment that prioritize complainants'
wishes.\930\
---------------------------------------------------------------------------
\927\ 2001 Guidance at iv, vi.
\928\ 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at
4.
\929\ 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at
4.
\930\ The final regulations specify that a recipient's non-
deliberately indifferent response must include investigating and
adjudicating sexual harassment allegations, when a formal complaint
is filed by a complainant or signed by the recipient's Title IX
Coordinator. Sec. 106.44(b)(1); Sec. 106.30 (defining ``formal
complaint''); Sec. 106.45(b)(3)(i).
---------------------------------------------------------------------------
The Department disagrees that these final regulations are highly or
overly prescriptive such that recipients have no discretion. Recipients
retain discretion to determine which supportive measures to offer and
must document why providing supportive measures is not clearly
unreasonably in light of the known circumstances, if the recipient does
not provide any supportive measures. The Department will not second
guess the supportive measures that a recipient offers as long as these
supportive measures are not clearly unreasonable in light of the known
circumstances. Similarly, the Department believes that the grievance
process prescribed by Sec. 106.45 creates a standardized framework for
resolving formal complaints of sexual harassment under Title IX while
leaving recipients discretion to adopt rules and practices not required
under Sec. 106.45.\931\ The Department notes that these final
regulations do not include the safe harbor provisions proposed in the
NPRM, and the Department explains its decision for not including these
safe harbors in the ``Recipient's Response in Specific Circumstances''
section of this preamble.
---------------------------------------------------------------------------
\931\ The revised introductory sentence in Sec. 106.45(b)
provides that any provisions, rules, or practices other than those
required by this section that a recipient adopts as part of its
grievance process for handling formal complaints of sexual
harassment as defined in Sec. 106.30, must apply equally to both
parties. The final regulations grant flexibility to recipients in
other respects; see the discussion in the ``Other Language/
Terminology Comments'' subsection of the ``Section 106.30
Definitions'' section of this preamble (noting that recipients may
decide whether to calculate time frames using calendar days, school
days, or other method); Sec. 106.45(b)(6)(i) (allowing, but not
requiring, live hearings to be held virtually through use of
technology); Sec. 106.45(b)(5)(vi) (removing the requirement that
evidence gathered in the investigation be provided to the parties
using a file-sharing platform); Sec. Sec. 106.45(b)(1)(vii),
106.45(b)(7)(i) (giving recipients a choice between using the
preponderance of the evidence standard or the clear and convincing
evidence standard).
---------------------------------------------------------------------------
Contrary to some commenters' concerns, the deliberate indifference
standard does not relieve recipients of their obligation to respond to
every known allegation of sexual harassment. The deliberate
indifference standard would also not allow recipients to investigate
fewer allegations of sexual harassment or punish fewer respondents
after a finding of responsibility. Rather, under these final
regulations, recipients are specifically required to investigate
allegations in a formal complaint (and must explain to each complainant
the option of filing a formal complaint), and must provide a
complainant with
[[Page 30210]]
remedies any time a respondent is found responsible for sexual
harassment pursuant to Sec. 106.45(b)(1)(i). Even where a formal
investigation is not required (because neither the complainant nor the
Title IX Coordinator has filed or signed a formal complaint, or because
a complainant is not participating in or attempting to participate in
the recipient's education program or activity at the time of filing),
the deliberate indifference standard requires that a recipient's
response is not clearly unreasonable in light of known circumstances.
Contrary to commenters' arguments, this standard requires more than for
a recipient to respond in some minimal or ineffective way because
minimal and ineffective responses would inevitably qualify as ``clearly
unreasonable'' and because as revised, Sec. 106.44(a) imposes
specific, mandatory obligations on a recipient with respect to a
recipient's response to each complainant. Given that the deliberate
indifference standard involves an analysis of whether a response was
clearly unreasonable in light of the known circumstances, there are
many different factual circumstances under which a recipient's response
may be deemed deliberately indifferent.
Section 106.44(a) requires a recipient to respond promptly where
the recipient has actual knowledge of sexual harassment; a recipient
may have actual knowledge of sexual harassment even where no person has
reported or filed a formal complaint about the sexual harassment. For
example, employees in an elementary or secondary school may observe
sexualized insults scrawled on school hallways, and even where no
student has reported the incident, the school employees' notice of
conduct that could constitute sexual harassment as defined in Sec.
106.30 (i.e., unwelcome conduct that a reasonable person would conclude
is so severe, pervasive, and objectively offensive that it effectively
denies a person equal access to education) charges the recipient with
actual knowledge, and the recipient must respond in a manner that is
not clearly unreasonable in light of the known circumstances, which
could include the recipient removing the sexually harassing insults and
communicating to the student body that sexual harassment is
unacceptable. By way of further example, if a Title IX Coordinator were
to receive multiple reports of sexual harassment against the same
respondent, as part of a non-deliberately indifferent response the
Title IX Coordinator may sign a formal complaint to initiate a
grievance process against the respondent, even where no person who
alleges to be the victim wishes to file a formal complaint. The
deliberate indifference standard does not permit recipients to ignore
or respond inadequately to sexual harassment of which the recipient has
become aware, but the deliberate indifference standard appropriately
recognizes that a recipient's prompt response will differ based on the
unique factual circumstances presented in each instance of sexual
harassment.
In response to comments that the Gebser/Davis liability standard
(i.e., deliberate indifference) is and should be used only for monetary
damages in private litigation, the Department notes that courts have
used the Gebser/Davis standard in considering and awarding injunctive
relief.\932\ Additionally, in Gebser, the Supreme Court acknowledged
that the Department of Education has the authority to ``promulgate and
enforce requirements that effectuate [Title IX's] non-discrimination
mandate.'' \933\ In promulgating these final regulations, the
Department is choosing to do just that. The Department is not required
to adopt identical standards for all civil rights laws under the
Department's enforcement authority, and after carefully considering the
rationale relied upon by the Supreme Court in the context of sexual
harassment under Title IX, the Department adopts the deliberate
indifference standard articulated by the Supreme Court, tailored for
administrative enforcement of recipients' responses to sexual
harassment. The Department believes it would be beneficial for
recipients and students alike if the administrative standards governing
recipients' responses to sexual harassment were aligned with the
standards developed by the Supreme Court in private actions, while
ensuring that through administrative enforcement the Department holds
recipients accountable for taking specific actions that the Gebser/
Davis framework does not require.\934\
---------------------------------------------------------------------------
\932\ Fitzgerald v. Barnstable Sch. Dist., 555 U.S. 246, 255
(2009) (``In addition, this Court has recognized an implied private
right of action . . . In a suit brought pursuant to this private
right, both injunctive relief and damages are available.'')
(internal citations omitted; emphasis added); Hill v. Cundiff, 797
F.3d 948, 972-73 (11th Cir. 2015) (reversing summary judgment
against plaintiff's claims for injunctive relief because a jury
could find that the alleged conduct was ``severe, pervasive, and
objectively offensive'' under Davis); B.H. ex rel. Hawk v. Easton
Area Sch. Dist., 725 F.3d 293, 322-23 (3d Cir. 2013) (upholding
preliminary injunction against school for banning students from
wearing bracelets because the school failed to show that the
``bracelets would breed an environment of pervasive and severe
harassment'' under Davis); Haidak v. Univ. of Mass. at Amherst, 299
F. Supp. 3d 242, 270 (D. Mass. 2018) (denying plaintiff's request
for a preliminary injunction because he failed to show that the
school was deliberately indifferent to an environment of severe and
pervasive discriminatory conduct under Davis), aff'd in part,
vacated in part, remanded by Haidak v. Univ. of Mass.-Amherst, 933
F.3d 56 (1st Cir. 2019).
\933\ Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292
(1998).
\934\ E.g., Sec. 106.44(a) specifically requires that a
recipient's mandatory response to each report of sexual harassment
must include promptly offering supportive measures to the
complainant, and must avoid imposing disciplinary sanctions against
a respondent without following the Sec. 106.45 grievance process;
Sec. 106.44(b)(1) requires a recipient to investigate sexual
harassment allegations made in a formal complaint; Sec. 106.45
prescribes specific procedural protections for complainants, and
respondents, when a recipient investigates and adjudicates formal
complaints.
---------------------------------------------------------------------------
The Department also believes that the language used to describe the
deliberate indifference standard is sufficiently clear. The Department
defines the standard according to the conventional understanding of the
standard, that is, to be deliberately indifferent means to have acted
in a way that is ``clearly unreasonable in light of the known
circumstances'' consistent with the formulation of the deliberate
indifference standard offered by the Supreme Court in Davis.\935\ The
Department appreciates the opportunity to clarify that the term
``deliberate'' as used in the standard does not require an element of
subjective intent to harm, or bad faith, or similar mental state, on
the part of a recipient's officials, administrators, or employees.
Rather, the final regulations clearly state in Sec. 106.44(a) that a
recipient with actual knowledge of sexual harassment against a person
in the United States occurring in its education program or activity
must respond in a manner that is ``not clearly unreasonable,''
including by taking certain specific steps such as offering supportive
measures to a complainant. Accordingly, the Department will hold a
recipient responsible for compliance regardless of whether acting in a
clearly unreasonable way, in light of the known circumstances, is the
result of malice, incompetence, ignorance, or other mental state of the
recipient's officials, administrators, or employees. As adapted for
administrative enforcement, the deliberate indifference standard
sufficiently ensures that a recipient takes steps to address student
safety and provides equal access to the recipient's education program
or activity while preserving a recipient's discretion to address the
unique facts and circumstances presented by any particular situation
(for example, a
[[Page 30211]]
recipient's offer of supportive measures as required in Sec. 106.44(a)
will be evaluated based on whether the recipient offered supportive
measures to the complainant that, under the facts and circumstances
presented in an individual complainant's situation, were in fact
designed to restore or preserve the complainant's equal educational
access).
---------------------------------------------------------------------------
\935\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49
(1999); Sec. 106.44(a).
---------------------------------------------------------------------------
The Department is persuaded by commenters' suggestions that the
Department should impose stricter, more specific obligations on
recipients' responses to sexual harassment or sexual harassment
allegations, including allegations against employees in positions of
authority. Rather than abandoning the deliberate indifference liability
standard, the Department adapts that standard for administrative
enforcement in ways that preserve the benefits of aligning judicial and
administrative enforcement rubrics, preserve the benefit of the ``not
clearly unreasonable in light of the known circumstances'' standard's
deference to unique factual circumstances, yet imposes mandatory
obligations on every recipient to respond in specific ways to each
complainant alleged to be victimized by sexual harassment. Adopting the
Supreme Court's formulation of the deliberate indifference standard,
while adapting that standard to specify what a recipient must do every
time the recipient knows of sexual harassment (or allegations of sexual
harassment), addresses commenters' concerns that the deliberate
indifference standard as presented in the NPRM did not impose strict
enough requirements on a recipient to ensure the recipient responds
supportively and fairly to sexual harassment in its education programs
or activities.
In the interest of providing greater clarity, consistency, and
transparency as to a recipient's obligations under Title IX and what
students can expect, the Department does not want to overcomplicate the
regulatory scheme in the final regulations by establishing separate
standards for when a recipient is handling complaints involving
different classes of respondents (for example, allegations against
students, versus allegations against employees). The Department
believes that expecting a recipient to respond in a manner that is not
clearly unreasonable in light of the known circumstances appropriately
requires a recipient to take into account whether the respondent holds
a position of authority.
Changes: The Department revised Sec. 106.44(a) to provide that a
recipient's response must be prompt, and must treat complainants and
respondents equitably by offering supportive measures as defined in
Sec. 106.30 to a complainant, and 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 as defined in Sec. 106.30, against a respondent. Section
Sec. 106.44(a) is also revised to provide that the Title IX
Coordinator must promptly contact the complainant to discuss the
availability of supportive measures as defined in Sec. 106.30,
consider the complainant's wishes with respect to supportive measures,
inform the complainant of the availability of supportive measures with
or without the filing of a formal complaint, and explain to the
complainant the process for filing a formal complaint.
Recipient's Response in Specific Circumstances
Section 106.44(b) Proposed ``Safe Harbors,'' Generally
Comments: Some commenters praised the safe harbor provisions
generally for giving colleges and universities the discretion to
respond to sexual harassment complaints outside the formal grievance
process. Some commenters also praised the safe harbor provisions for
identifying specific circumstances under which a recipient can conform
its response to legal requirements and avoid a finding of deliberate
indifference.
Some commenters, although supportive of the safe harbors generally,
requested that the Department clarify how the safe harbors would work.
Many commenters disagreed with the Department's use of the term
``safe harbor'' in the NPRM, because the provisions that provided a
``safe harbor'' also include mandatory requirements. These commenters
argued that a safe harbor is conventionally understood as a provision
that a regulated party can take advantage of to shield itself from
administrative action, as opposed to something a regulated party is
required to do. Commenters asserted that ``safe harbors'' are options
rather than obligations and pointed to the mandatory language contained
in proposed Sec. 106.44(b)(2) under which the Title IX Coordinator
would have been required to file a formal complaint upon receiving
multiple reports against a respondent,\936\ as fundamentally
inconsistent with the idea of a safe harbor.
---------------------------------------------------------------------------
\936\ Proposed Sec. 106.44(b)(2) has been removed in the final
regulations; see discussion under the ``Sec. Proposed 106.44(b)(2)
Reports by Multiple Complainants of Conduct by Same Respondent
[removed in final regulations]'' subsection of the ``Recipient's
Response in Specific Circumstances'' subsection of the ``Section
106.44 Recipient's Response to Sexual Harassment, Generally''
section of this preamble.
---------------------------------------------------------------------------
Some commenters criticized the safe harbor provisions as rules
intended to immunize recipients from a finding of deliberate
indifference but requiring no more than a minimal response to
allegations of sexual harassment, contrary to Title IX's express
intent. Commenters argued that the safe harbor provisions, combined
with the deliberate indifference standard, curtail the Department's
ability to independently and comprehensively review a recipient's
response to sexual harassment allegations, amounting to an abdication
of the Department's role to enforce Title IX.
Discussion: The Department appreciates comments in support of the
two proposed safe harbors. Upon further consideration, the Department
decided not to include the two proposed safe harbors in these final
regulations.
One of the proposed safe harbor provisions provided that if the
recipient followed a grievance process (including implementing any
appropriate remedy as required) that complies with Sec. 106.45 in
response to a formal complaint, the recipient's response to the formal
complaint would not be deliberately indifferent and would not otherwise
constitute discrimination under Title IX. The proposed provision was
meant to provide an assurance that the recipient's response (only as to
the formal complaint) would not be deemed deliberately indifferent as
long as a recipient complies with Sec. 106.45. This proposed safe
harbor left open the possibility that other aspects of the recipient's
response may be deliberately indifferent. The Department understands
commenters' concerns that this safe harbor provision may have been
confusing or misleading by somehow suggesting that compliance with
Sec. 106.45 is not required, or by suggesting that compliance with
Sec. 106.45 would have excused a recipient from providing a non-
deliberately indifferent response with respect to matters other than
conducting a grievance process. The Department is not including this
proposed safe harbor provision in the final regulations to make it
clear that recipients are always required to comply with Sec. 106.45
in response to a formal complaint, and are always required to comply
with all the obligations specified in Sec. 106.44(a), with or without
a formal complaint being filed. Indeed, the Department retains the
[[Page 30212]]
mandate in Sec. 106.45(b)(1) and revises this mandate for clarity to
state: ``In response to a formal complaint, a recipient must follow a
grievance process that complies with Sec. 106.45.'' The Department did
not intend to leave the impression that it was immunizing recipients
with respect to their obligations to address sexual harassment. These
final regulations require a meaningful response to allegations of
sexual harassment of which a recipient has notice, when the sexual
harassment occurs in a recipient's education program or activity
against a person in the United States.
The second proposed safe harbor provided that a recipient would not
be deliberately indifferent when in the absence of a formal complaint
the recipient offers and implements supportive measures designed to
effectively restore or preserve the complainant's access to the
recipient's education program or activity, and the recipient also
informs the complainant in writing of the right to file a formal
complaint. This safe harbor is now unworkable and unnecessary in light
of other revisions made to the proposed regulations, specifically a
recipient's obligations in Sec. 106.44(a) and Sec. 106.45(b)(10)(ii).
Under Sec. 106.44(a), a recipient's response must treat complainants
and respondents equitably by offering the complainant supportive
measures as defined in Sec. 106.30, and a Title IX Coordinator must
promptly contact the complainant to discuss the availability of
supportive measures, consider the complainant's wishes with respect to
supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain to the complainant the process for filing a formal
complaint. The Department revised Sec. 106.45(b)(1) to add a mandate
that with or without a formal complaint, a recipient must comply with
Sec. 106.44(a), emphasizing that recipients must offer supportive
measures to a complainant regardless of whether a complainant chooses
to file a formal complaint, and recipients must investigate any formal
complaint that a complaint does choose to file. Additionally, under
Sec. 106.45(b)(10)(ii), if a recipient does not provide a complainant
with supportive measures, then the recipient must document why such a
response was not clearly unreasonable in light of the known
circumstances. As recipients are now required to offer supportive
measures to a complainant (not only incentivized to do so by the
proposed safe harbor) and to document why not providing a complainant
with supportive measures was not clearly unreasonable in light of the
known circumstances, the final regulations removes safe harbors and
instead, the Department will enforce the mandates and requirements in
the final regulations, including those specified in Sec. Sec.
106.44(a) and 106.44(b).
Despite the absence of these safe harbor provisions, recipients
still have discretion with respect to how to respond to sexual
harassment allegations in a way that takes into account factual
circumstances. The final regulations, like the proposed regulations,
require a recipient to begin the Sec. 106.45 grievance process in
response to a formal complaint. A recipient retains significant
discretion under these final regulations, yet must meet specific,
mandatory obligations that ensure a recipient responds supportively and
fairly to every allegation of Title IX sexual harassment. For example,
a recipient may decide which supportive measures to offer a
complainant, whether to offer an informal resolution process under
Sec. 106.45(b)(9), whether to allow all parties, witnesses, and other
participants to appear at the live hearing virtually under Sec.
106.45(b)(6)(i), and whether to take action under another provision of
the recipient's code of conduct even if the recipient must dismiss
allegations in a formal complaint under Sec. 106.45(b)(3)(i), among
other areas of discretion.
These final regulations also provide sufficient clarity as to how a
recipient must respond to sexual harassment, rendering the proposed
safe harbors unnecessary. For example, Sec. 106.44(a) specifically
addresses how a recipient's response must treat complainants and
respondents equitably by offering supportive measures as defined in
Sec. 106.30 to a complainant, and 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. Section Sec. 106.44(b)(1) also clearly
mandates that in response to a formal complaint a recipient must follow
a grievance process that complies with Sec. 106.45, and with or
without a formal complaint, a recipient must comply with Sec.
106.44(a). The Department clearly addresses specific circumstances
throughout these final regulations. For example, the Department
addresses when a recipient must or may dismiss a formal complaint under
Sec. 106.45(b)(3) for purposes of sexual harassment under Title IX or
this part, when a recipient may consolidate formal complaints as to
allegations of sexual harassment under Sec. 106.45(b)(4), and when an
informal resolution process may be offered under Sec. 106.45(b)(9),
among other matters.
The elimination of the safe harbor provisions proposed in the NPRM
alleviates and addresses the concerns of commenters who opposed these
safe harbor provisions.
Changes: The Department does not include the two safe harbor
provisions from the NPRM, in proposed Sec. 106.44(b)(1) and proposed
Sec. 106.44(b)(3).
Section 106.44(b)(1) Mandate To Investigate Formal Complaints and Safe
Harbor
Comments: Several commenters supported Sec. 106.44(b)(1),
asserting that this provision places control in the hands of the
victims, and prevents victims from having to participate in a grievance
process against their will. Other commenters opposed this provision,
arguing that it relieves institutions of the obligation to address
sexual harassment claims of which they have actual knowledge by
discouraging institutions from investigating allegations in the absence
of a formal complaint.
Many commenters expressed concern that institutions will merely
``check'' the procedural ``boxes'' outlined in Sec. 106.45 without
regard for the substantive outcomes of formal grievance processes. Many
commenters asserted that this proposed safe harbor would only benefits
respondents, and would provide no benefit to complainants. Other
commenters asserted that if a recipient fails to follow procedural
requirements in Sec. 106.45, the safe harbor in Sec. 106.44(b)(1)
would only hold recipients to the standard of deliberate indifference,
which commenters argued was too low a standard to ensure that
recipients comply with the Sec. 106.45 grievance process.
Many commenters argued that the safe harbor in Sec. 106.44(b)(1)
provided too little flexibility for institutions to develop their own
grievance process. Some commenters expressed concern that a recipient
would not have the flexibility to forgo a grievance process in a
situation where the recipient determined that the allegations contained
in a formal complaint were without merit, frivolous, or that the
allegations had already been investigated. Some commenters asked the
Department to clarify whether satisfying Sec. 106.45 is the only way,
or one of many ways, to comply with the proposed rules and receive the
safe harbor protections of Sec. 106.44(b)(1).
[[Page 30213]]
Another commenter suggested that the Department add a timeliness
requirement to Sec. 106.44(b)(1) so that a formal complaint must be
filed within a certain time frame, in order to avoid prejudice or bias
against a respondent.
Discussion: As explained in the ``Section 106.44(b) Proposed `Safe
harbors,' generally,'' subsection of the ``Recipient's Response in
Specific Circumstances'' section of this preamble, these final
regulations do not include the safe harbor provision that if the
recipient follows a grievance process (including implementing any
appropriate remedy as required) that complies with Sec. 106.45 in
response to a formal complaint, the recipient's response to the formal
complaint is not deliberately indifferent and does not otherwise
constitute discrimination under Title IX. The Department understands
commenters' concerns that this safe harbor provision may have been
confusing or misleading by somehow suggesting that full compliance with
Sec. 106.45 is not required--that is, by suggesting that a recipient
must only follow Sec. 106.45 in a way that is not deliberately
indifferent. The Department is not including this proposed safe harbor
provision in the final regulations to make it clear that recipients are
always required to fully comply with Sec. 106.45 in response to a
formal complaint. Indeed, the Department retains the mandate in Sec.
106.45(b)(1) and revises this mandate for clarity to state: ``In
response to a formal complaint, a recipient must follow a grievance
process that complies with Sec. 106.45.'' The Department also
recognizes, as many commenters stated, that a complainant may not wish
to initiate or participate in a grievance process for a variety of
reasons, including fear of re-traumatization, and the Department
affirms the autonomy of complainants by making it clear that a
recipient must investigate and adjudicate when a complainant has filed
a formal complaint. At the same time, the final regulations ensure that
complainants must be offered supportive measures with or without filing
a formal complaint, thus respecting the autonomy of complainants who do
not wish to initiate or participate in a grievance process by ensuring
that such complainants receive a supportive response from the recipient
regardless of also choosing to file a formal complaint. For this
reason, the Department revised Sec. 106.44(b)(1) to expressly state:
``With or without a formal complaint, a recipient must comply with
Sec. 106.44(a).'' Section 106.44(a) requires a recipient to offer a
complainant supportive measures as part of its prompt, non-deliberately
indifferent response, whether or not the complainant chooses to file a
formal complaint.
The Department disagrees that these final regulations discourage
recipients from investigating allegations. As explained previously, a
recipient must investigate a complainant's allegations when the
complainant chooses to file a formal complaint, and a recipient may
choose to initiate a grievance process to investigate the complainant's
allegations even when the complainant chooses not to file a formal
complaint, if the Title IX Coordinator signs a formal complaint, after
having considered the complainant's wishes and evaluated whether an
investigation is not clearly unreasonable in light of the specific
circumstances. A recipient, however, cannot impose any disciplinary
sanctions or other actions that are not supportive measures against a
respondent until after the recipient follows a grievance process that
complies with Sec. 106.45. The recipient's Title IX Coordinator may
always sign a formal complaint, as defined in Sec. 106.30, to initiate
an investigation. The formal complaint triggers the grievance process
in Sec. 106.45, which provides notice to both parties of the
investigation and provides them an equal opportunity to participate and
respond to the allegations of sexual harassment. These final
regulations protect both complainants and respondents from the
repercussions of an investigation that they do not know about and
cannot participate in, and the complainant as well as the respondent
may choose whether to participate in the grievance process.\937\
---------------------------------------------------------------------------
\937\ Section 106.71 (added in the final regulations,
prohibiting retaliation against any individual for exercising rights
under Title IX, including an individual's right to participate, or
to choose not to participate, in a Title IX grievance process). See
the ``Retaliation'' section of this preamble for further discussion.
---------------------------------------------------------------------------
By eliminating Sec. 106.44(b)(1), the Department makes it clear
that recipients will not be able to merely ``check boxes'' or escape
liability just for having a process that appears ``on paper'' to comply
with Sec. 106.45. We appreciate the opportunity to clarify that the
Department will evaluate a recipient's compliance with Sec. 106.45
without regard to whether the recipient was ``deliberately
indifferent'' in failing to comply with those provisions. In other
words, the Department may find that the recipient violated any of the
requirements in Sec. 106.45, whether or not the recipient believes
that failure to comply was ``not clearly unreasonable.'' As explained
throughout this preamble, including in the ``Role of Due Process in the
Grievance Process'' section of this preamble, the Department has
selected all the provisions of the Sec. 106.45 grievance process as
those provisions needed to improve the fairness, reliability,
predictability, and legitimacy of Title IX grievance processes, and
expects recipients to comply with the entirety of Sec. 106.45. For
example, the Department may find that a recipient violated Sec.
106.45(b)(2) if the recipient did not provide the requisite written
notice of allegations to both parties, even if the recipient believes
that the recipient had a good reason for refusing to send that initial
written notice. Similarly, a recipient may violate Sec.
106.45(b)(5)(ii) if the recipient does not provide an equal opportunity
for the parties to present witnesses, including fact and expert
witnesses, and other inculpatory and exculpatory evidence as part of
the investigation, even if the recipient believes that refusing to do
so was not clearly unreasonable.
The Department disagrees that the grievance process prescribed by
Sec. 106.45 favors respondents or provides no benefits to
complainants. For reasons explained throughout this preamble, including
in the ``Role of Due Process in the Grievance Process'' section and the
``General Support and Opposition to the Sec. 106.45 Grievance
Process'' section of this preamble, the Department believes that the
Sec. 106.45 grievance process gives complainants and respondents
clear, strong procedural rights and protections that foster a fair
process leading to reliable outcomes. For example, a complainant whose
allegations of sexual harassment in a formal complaint are dismissed
may appeal such a dismissal on specific grounds under Sec.
106.45(b)(8)(i). The grievance process in Sec. 106.45 provides
consistency, predictability, and transparency as to a recipient's
obligations and what students can expect when a formal complaint is
filed. As many commenters appreciated, under the final regulations, if
the complainant decides to file a formal complaint, this will trigger a
grievance process that includes the procedural safeguards set forth in
Sec. 106.45.
The Department understands commenters' arguments that Sec.
106.44(b)(1) does not afford recipients flexibility to select a
grievance process that the recipient prefers over the process
prescribed in Sec. 106.45. For reasons described in the ``Role of Due
Process in the Grievance Process'' section of this preamble, and in the
``General Support and Opposition to the
[[Page 30214]]
Sec. 106.45 Grievance Process'' section of this preamble, the
Department believes that the grievance process prescribed by Sec.
106.45 creates a standardized framework for resolving formal complaints
of sexual harassment under Title IX while leaving recipients discretion
to adopt rules and practices not required under Sec. 106.45.\938\ We
reiterate that the Sec. 106.45 grievance process applies only to
formal complaints alleging sexual harassment as defined in Sec.
106.30, that occurred in the recipient's education program or activity
against a person in the United States. These final regulations do not
dictate what kind of process a recipient should or must use to resolve
allegations of other types of misconduct. Because a recipient's
response to Title IX sexual harassment is part of a recipient's
obligation to protect every student's Federal civil right to
participate in education programs and activities free from sex
discrimination a recipient's response is not simply a matter of the
recipient's own codes of conduct or policies; a recipient's response is
a matter of fulfilling obligations under a Federal civil rights law.
The Department has carefully crafted a standardized grievance process
for resolving allegations of Title IX sexual harassment so that every
student (and employee) receives the benefit of transparent,
predictable, consistent resolution of formal complaints that allege sex
discrimination in the form of sexual harassment under Title IX.
---------------------------------------------------------------------------
\938\ The revised introductory sentence in Sec. 106.45(b)
provides that any provisions, rules, or practices other than those
required by Sec. 106.45 that a recipient adopts as part of its
grievance process for handling formal complaints of sexual
harassment as defined in Sec. 106.30, must apply equally to both
parties. The final regulations grant flexibility to recipients in
other respects. The discussion in the ``Other Language/Terminology
Comments'' subsection of the ``Section 106.30 Definitions'' section
of this preamble notes that recipients may decide whether to
calculate time frames using calendar days, school days, or other
method. See also Sec. 106.45(b)(6)(i) (allowing, but not requiring,
live hearings to be held virtually through use of technology); Sec.
106.45(b)(5)(vi) (removing the requirement that evidence in the
investigation be provided to the parties using a file-sharing
platform); Sec. 106.45(b)(7)(i) (giving recipients a choice between
using the preponderance of the evidence standard or the clear and
convincing evidence standard).
---------------------------------------------------------------------------
The Department acknowledges commenters' concerns that recipients do
not have the discretion to forgo a formal grievance process in a
situation where the recipient determined the allegations were without
merit, frivolous, or had already been investigated, but we decline to
grant that kind of discretion because the Department believes that,
where a complainant chooses to file a formal complaint and initiate a
recipient's formal grievance process, that formal complaint should be
taken seriously and not prejudged or subjected to cursory or conclusory
evaluation by a recipient's administrators. The purpose of the Sec.
106.45 grievance process is to resolve allegations of sexual harassment
impartially, without conflicts of interest or bias, and to objectively
examine relevant evidence before reaching a determination regarding
responsibility. Permitting a recipient to deem allegations meritless or
frivolous without following the Sec. 106.45 grievance process would
defeat the Department's purpose in providing both parties with a
consistent, transparent, fair process, would not increase the
reliability of outcomes, and would increase the risk that victims of
sexual harassment will not be provided remedies. The Department notes
that the final regulations give recipients discretion to offer informal
resolution processes to resolve formal complaints (Sec. 106.45(b)(9))
and permit discretionary dismissal of a formal complaint (or
allegations therein) by a recipient under limited circumstances (Sec.
106.45(b)(3)(ii)).\939\
---------------------------------------------------------------------------
\939\ See the ``Dismissal and Consolidation of Formal
Complaints'' section of this preamble. We note that one of the bases
for discretionary dismissal of a formal complaint (or allegations
therein) is where specific circumstances prevent the recipient from
gathering evidence sufficient to reach a determination. When a
formal complaint contains allegations that are precisely the same as
allegations the recipient has already investigated and adjudicated,
that circumstance could justify the recipient exercising discretion
to dismiss those allegations, under Sec. 106.45(b)(3)(ii).
---------------------------------------------------------------------------
We have also considered commenters' suggestion that the Department
add a requirement limiting the amount of time a complainant has for
filing a formal complaint, but the Department declines to revise the
final regulations to include a statute of limitations or similar time
limit.\940\ However, we have revised Sec. 106.30 defining ``formal
complaint'' to specify that at the time of filing a formal complaint,
the complainant must be participating in or attempting to participate
in the recipient's education program or activity. In addition, Sec.
106.45(b)(3)(ii) allows a discretionary dismissal of a formal complaint
where the complainant wishes to withdraw the formal complaint (if the
complainant notifies the Title IX Coordinator, in writing, of this
wish), where the respondent is no longer enrolled or employed by the
recipient, or where specific circumstances prevent the recipient from
meeting the recipient's burden of collecting evidence sufficient to
reach a determination regarding responsibility. The length of time
elapsed between an incident of alleged sexual harassment, and the
filing of a formal complaint, may, in specific circumstances, prevent a
recipient from collecting enough evidence to reach a determination,
justifying a discretionary dismissal under Sec. 106.45(b)(3)(ii).
---------------------------------------------------------------------------
\940\ For further discussion, see the ``Formal Complaint''
subsection of the ``Section 106.30 Definitions'' section of this
preamble.
---------------------------------------------------------------------------
Changes: The Department does not include the safe harbor provision
regarding the Sec. 106.45 grievance process that was proposed in Sec.
106.44(b)(1) in the NPRM. Section 106.44(b)(1) in the final regulations
retains the mandate to follow a grievance process that complies with
Sec. 106.45 in response to a formal complaint, and adds a mandate that
the recipient must comply with Sec. 106.44(a) with or without a formal
complaint.
Proposed Sec. 106.44(b)(2) Reports by Multiple Complainants of Conduct
by Same Respondent [Removed in Final Regulations]
Comments: A number of commenters expressed opposition to proposed
Sec. 106.44(b)(2), which would have required Title IX Coordinators to
file a formal complaint upon receiving reports from multiple
complainants that a respondent engaged in conduct that could constitute
sexual harassment. Commenters opposed this proposed provision due to
concerns that the provision could place the safety of victims at risk
by requiring a grievance process against a respondent over the wishes
of the complainant and could place victims in harm's way without the
victim's knowledge or input because nothing in the proposed provision
required the Title IX Coordinator to first alert or warn the victim
that the Title IX Coordinator would file a formal complaint. Commenters
argued that this proposed provision implied that Title IX Coordinators
could not file a formal complaint unless a respondent was a repeat
offender.
A number of commenters expressed concern that the proposed
provision would pose a particular risk in cases dealing with dating
violence, domestic violence, or stalking. Commenters argued that
survivors often choose not to report intimate partner violence or
stalking to authorities for a multitude of reasons, one of which is
fear that the perpetrator will retaliate or escalate the violence.
A number of commenters expressed concern that the mandatory filing
requirement in proposed Sec. 106.44(b)(2) would violate survivor
autonomy. Commenters argued that the proposed provision would violate
autonomy principles embedded elsewhere in the proposed rules.
Commenters argued the
[[Page 30215]]
Department's contradictory statements regarding the importance of
survivor autonomy were arbitrary and capricious. Commenters argued that
requiring schools to trigger formal grievance procedures when the
school has received multiple reports of harassment by the same
perpetrator would violate survivor autonomy and discourage reporting.
One commenter asserted that the proposed provision would retraumatize
victims by forcing an investigation when no victim wants to testify
against the perpetrator. One commenter asserted that this provision
would exacerbate survivors' feelings of powerlessness. Commenters
asserted that students should be able to discuss a situation without
the Title IX office initiating a formal process without the
complainant's permission. Commenters stated that sometimes a student
may want advice, or want supportive measures, without desiring a formal
process.
A number of commenters expressed concern that requiring Title IX
Coordinators to file formal complaints against the wishes of
complainants will lead to violations of confidentiality of survivors
who already do not want to come forward, and may not come forward at
all if there is a risk that the school will violate their wishes by
investigating. Commenters argued that victims who report but do not
wish to pursue a formal complaint would be forced into potentially
dangerous situations unknowingly, since nothing in the proposed rules
imposed a duty on the institution to offer safety measures or
accommodations. Other commenters asserted that litigation arising out
of Title IX proceedings is common, and that requiring a recipient to
pursue a grievance proceeding against a respondent invites the
respondent to then name the complainant as a party to subsequent
litigation even when the complainant did not want to initiate an
investigation in the first place.
A number of commenters expressed concern that deeming the Title IX
Coordinator as a complainant (by requiring them to file a formal
complaint) creates a significant conflict of interest by placing the
Title IX Coordinator in an adversarial position against the respondent.
Other commenters argued that asking the Title IX Coordinator to sign
and file a formal complaint in cases where complainants are unwilling
to participate would make it impossible for the Title IX Coordinator to
maintain the appearance of neutrality, even if they are in fact
unbiased in all other ways. Other commenters expressed concern that if
the person who reported the incident is reluctant to come forward, it
would place the Title IX Coordinator, who should be an impartial
resource, into a role of advocating for a specific person's report.
A number of commenters argued that the proposed provision would
chill reporting of sexual harassment because victims would fear being
drawn involuntarily into a formal process. Commenters suggested that,
if institutions file formal complaints without the willing, informed
participation of the victim, some requirements, including the cross-
examination requirement, should be adjusted, to protect victims who did
not consent to participate in a grievance process from negative
consequences that commenters argued may possibly result from
participating in a grievance process, especially a live hearing.
Commenters argued that these consequences might include fear of re-
traumatization from being cross-examined, questions perceived as
invasions of privacy, and lawsuits filed by respondents based on
testimony given during a Title IX hearing.
Commenters argued that this provision would depart from best
practices for helping victims. Commenters asserted that in order to
effectively address sex discrimination, educational institutions must
be able to cultivate relationships of trust with community members with
regard to reporting systems, and that this proposed provision would
mean that recipients would violate the wishes of reporting parties,
thereby betraying and violating their trust. Commenters asserted that
the ability of a complainant to seek supportive measures without
risking public exposure is foundational to creating conditions under
which community members are more willing to avail themselves of
institutional support, including formal grievance proceedings.
Commenters expressed concern that, in the absence of supportive
measures, many survivors cannot keep up with the demands of rigorous
schoolwork while dealing with the impacts of trauma, and this proposed
provision would leave complainants in a position of never knowing
whether the complainant's report of sexual harassment would result in a
formal process, because the complainant would have no way of knowing
whether another complainant's report would trigger proposed Sec.
106.44(b)(2).
Commenters expressed concern that proposed Sec. 106.44(b)(2) would
conflict with or be in tension with the requirement in Sec.
106.45(b)(6)(i) that schools disregard statements provided by witnesses
or parties who do not submit to cross-examination at a hearing, because
if alleged victims are unwilling to participate in the process and be
subject to cross-examination, then the adjudicator is not permitted to
consider the complainant's statements, rendering the filing of a formal
complaint by a Title IX Coordinator potentially futile. Commenters
argued that there was a conflict between proposed Sec. 106.44(b)(2)
and the proposed requirement in Sec. 106.45(b)(3) that a recipient
must dismiss a complaint if the alleged harassment did not occur within
the recipient's education program or activity; commenters questioned
how the recipient should respond when multiple reports are made against
the same respondent, but one or more of the reported incidents did not
take place within the education program or activity of the school and
suggested that to solve this conflict, recipients should make a good
faith investigation into all reports of sexual harassment, regardless
of the location of the incident, when one or more parties involved in
the report are under the ``purview'' of the recipient.
A number of commenters argued that proposed Sec. 106.44(b)(2)
would not meet its stated goal of protecting students because the
provision would not be limited only to stopping serial predators.
Commenters argued that the proposed provision would incentivize schools
to bring weak cases against serial perpetrators that may allow the
predators to escape responsibility. Commenters expressed concern if
schools are forced to move forward without the participation of
complainants in every case where there are multiple reports of sexual
harassment against the same respondent, then this may lead to
dismissals or inaccurate findings of non-responsibility. Other
commenters expressed concern that this proposed provision was designed
to help recipients, not protect victims. Commenters argued the proposed
provision was a designed-to-fail framework that would protect a
recipient from a claim by another victim who is attacked by the same
perpetrator, since all the recipient would be required to do is show
that it made a pro forma attempt to comply with its obligations, to
qualify for the safe harbor. Other commenters expressed concern that a
recipient impermissibly motivated by sex stereotypes could exploit this
proposed provision to engage in discriminatory practices that would
otherwise constitute a violation of Title IX.
[[Page 30216]]
Commenters argued that this proposed provision could put a
recipient in the untenable situation of being required to apply the
formal grievance processes to a situation the recipient does not
believe it can adequately investigate or that the recipient reasonably
believes can be addressed through other appropriate means. A number of
commenters expressed concern that this proposed provision would remove
the Title IX Coordinator's discretion; commenters asserted that
instead, Title IX Coordinators should evaluate what the appropriate
response is, whether it be a formal investigation or putting the
respondent on notice of the behavior complained about. Commenters
argued that, consistent with the 2001 Guidance, recipients should
continue to have discretion in determining whether or how to address
multiple reports involving a single respondent in cases where
complainants wish to remain anonymous or for other reasons are
unwilling to participate in formal proceedings.
A number of commenters argued that proposed Sec. 106.44(b)(2)
would alter and harm the valuable function of the Title IX Coordinator.
Other commenters expressed concern that this proposed provision would
complicate the role of the Title IX Coordinator because if the Title IX
Coordinator receives a report from a resident advisor or faculty member
(rather than from the victim themselves), and then subsequently
receives a report from a victim alleging a similar incident involving
the same perpetrator, the Title IX Coordinator might be confused about
whether or not the proposed provision requires the Title IX Coordinator
to file a formal complaint.
One commenter asserted that proposed Sec. 106.44(b)(2) would put
schools at risk for liability for monetary damages in private Title IX
lawsuits, as well as other State tort actions.
Commenters asserted that sometimes a third party reports an alleged
sexual harassment situation, but the alleged victim insists that there
was no violation and in cases like that, the recipient should be
required to make a report that is not attached to either party's
transcript, but that can be referenced if the alleged victim later
wishes to file a formal complaint.
Discussion: Despite the intended benefits of proposed Sec.
106.44(b)(2) described in the NPRM, the Department is persuaded by the
many commenters who expressed a variety of concerns about requiring the
Title IX Coordinator to file a formal complaint after receiving
multiple reports about the same respondent. In addition to raising
serious concerns about the potential effects on complainants,
commenters also described practical problems with proposed Sec.
106.44(b)(2) in relation to the rest of the final regulations. As a
result, the Department is removing proposed Sec. 106.44(b)(2)
entirely.\941\
---------------------------------------------------------------------------
\941\ The section number, 106.44(b)(2), now refers to the
provision discussed in the ``Section 106.44(b)(2) OCR Will Not Re-
weigh the Evidence'' subsection of the ``Recipient's Response in
Specific Circumstances'' subsection of the ``Section 106.44
Recipient's Response to Sexual Harassment, Generally'' section of
this preamble.
---------------------------------------------------------------------------
The Department is persuaded by commenters who argued that this
proposed provision would have removed the Title IX Coordinator's
discretion without necessary or sufficient reason to do so. The
Department agrees that the Title IX Coordinator should have the
flexibility to evaluate and determine an appropriate response under
pertinent facts and circumstances. The Department agrees with
commenters who argued that institutions should continue to have
discretion in determining whether or how to address multiple reports
involving a single respondent in cases where complainants wish to
remain anonymous or otherwise are unwilling to participate in a formal
process. Removing this proposed provision means that Title IX
Coordinators retain discretion, but are not required, to sign formal
complaints after receiving multiple reports of potential sexual
harassment against the same respondent. We believe that this approach
properly balances complainant autonomy, campus safety, and recipients'
use of resources that would otherwise be required to be used to
institute a potentially futile grievance process. The Department was
persuaded by commenters' concerns that under the proposed rules, filing
a formal complaint might have resulted in a Title IX Coordinator
becoming a ``complainant'' during the grievance process, or creating a
conflict of interest or lack of neutrality. We have revised the
definitions of ``complainant'' and ``formal complaint'' in Sec. 106.30
to clarify that when a Title IX Coordinator chooses to sign a formal
complaint, that action is not taken ``on behalf of'' the complainant;
the ``complainant'' is the person who is alleged to be the victim of
conduct that could constitute sexual harassment. Those revisions
further clarify that when a Title IX Coordinator signs a formal
complaint, the Title IX Coordinator does not become a complainant or
otherwise a party to the grievance process, and must abide by Sec.
106.45(b)(1)(iii), which requires Title IX personnel to be free from
conflicts of interest and bias, and serve impartially. We do not
believe that signing a formal complaint that initiates a grievance
process inherently creates a conflict of interest between the Title IX
Coordinator and the respondent; in such a situation, the Title IX
Coordinator is not advocating for or against the complainant or
respondent, and is not subscribing to the truth of the allegations, but
is rather instituting a grievance process (on behalf of the recipient,
not on behalf of the complainant) based on reported sexual harassment
so that the recipient may factually determine, through a fair and
impartial grievance process, whether or not sexual harassment occurred
in the recipient's education program or activity.
The Department is persuaded by commenters' concerns that the
proposed provision would have created tension with Sec.
106.45(b)(6)(i), which mandates that if a party or witness does not
submit to cross-examination at the hearing, the decision-maker must not
rely on any statement of that party or witness in reaching a
determination regarding responsibility. The Department is persuaded by
commenters' arguments that the proposed provision would have
incentivized or forced recipients to file futile complaints against
respondents with no complaining witness willing to testify at a live
hearing. Whether or not proposed Sec. 106.44(b)(2) would have
conflicted with Sec. 106.45(b)(3), the proposed provision Sec.
106.44(b)(2) has been removed from the final regulations, and we have
revised Sec. 106.45(b)(3) to clarify that a recipient may choose to
address allegations of sexual harassment that occurred outside the
recipient's education program or activity, through non-Title IX codes
of conduct. Where a complainant does not wish to participate in a
grievance process, including being cross-examined at a live hearing,
the recipient is not permitted to threaten, coerce, intimidate, or
discriminate against the complainant in an attempt to secure the
complainant's participation.\942\ Thus, even if a Title IX Coordinator
has signed a formal complaint, the complainant is not obligated to
participate in the ensuing grievance process and need not appear at a
live hearing or be cross-examined. We have added Sec. 106.71
prohibiting retaliation and expressly protecting any person's right not
to participate in a Title IX proceeding.
---------------------------------------------------------------------------
\942\ Section 106.71(a).
---------------------------------------------------------------------------
The Department is also persuaded that a chilling effect on victim
reporting
[[Page 30217]]
can be avoided by eliminating this proposed provision. The Department
is persuaded by commenters' concerns that complainants who are
unwilling to file a formal complaint should be able to confidentially
seek supportive measures without fear of being drawn into a formal
complaint process whenever the Title IX Coordinator receives a second
report from another complainant about the same respondent. The
Department is persuaded by commenters' arguments that students should
be able to discuss a situation with a Title IX Coordinator without the
Title IX Coordinator being required to initiate a grievance process
against the complainant's wishes, and by commenters' assertions that it
is not uncommon for respondents filing private lawsuits against the
recipient to include the complainant as a party to such lawsuits, so
dragging a complainant into a grievance process against the
complainant's wishes exposes the complainant to potential involvement
in private litigation as well.
The Department appreciates commenters' suggestions for specific
changes and clarifications to proposed Sec. 106.44(b)(2); however,
there is no need to consider such changes or clarifications because we
are removing this proposed provision from the final regulations.
Changes: The Department has not included proposed Sec.
106.44(b)(2) in the final regulations.
Comments: Some commenters expressed support for proposed Sec.
106.44(b)(2), asserting that it would be valuable for the protection of
sexual assault victims on university campuses. Other commenters argued
that it is common sense for the Title IX Coordinator to be able to file
complaints against bad actors. Some commenters argued that the
provision would improve the responsiveness of university Title IX
Coordinators to sexual assault or harassment allegations at
institutions around the country. Other commenters supported this
proposed provision so that Title IX Coordinators would file a complaint
against repeat sexual offenders even when no victim was willing to file
a formal complaint because this would protect a complainant's
confidentiality.
Discussion: For the reasons discussed above, the Department is
persuaded that eliminating proposed Sec. 106.44(b)(2) better serves
the Department's goals of ensuring that recipients respond adequately
to reports of sexual harassment without infringing on complainant
autonomy. Elimination of this proposed provision leaves Title IX
Coordinators discretion to sign a formal complaint initiating a
grievance process, when doing so is not clearly unreasonable in light
of the known circumstances, without mandating such a response every
time multiple reports against a respondent are received. We note that
contrary to some commenters' belief, the proposed provision would not
have protected complainants' confidentiality by requiring Title IX
Coordinators to file formal complaints, because the recipient would
still have been required under Sec. 106.45(b)(2) to send written
notice of the allegations to both parties, and the written notice must
include the complainant's identity, if known.
Changes: The Department has not included proposed Sec.
106.44(b)(2) in the final regulations.
Comments: Some commenters suggested expanding or modifying proposed
Sec. 106.44(b)(2), for example by specifying factors to consider as to
whether a pattern of behavior might present a potential threat to the
recipient's community. Some commenters suggested specifying that a
formal complaint must be filed where threats, serial predation,
violence, or weapons were allegedly involved.
Commenters recommended adding a credibility threshold to proposed
Sec. 106.44(b)(2) specifying that a Title IX Coordinator would only be
required to file a formal complaint upon receiving multiple credible
reports against the same respondent, so that the Title IX Coordinator
would not need to file a formal complaint where reports appeared
frivolous or unfounded.
Commenters suggested that the Department adopt the model used by
Harvard Law School for its Title IX compliance, which as described by
commenters provides that (1) that there be a complainant willing to
participate before the recipient will initiate a formal investigation
and (2) the only time an action should be pursued without a willing
complainant is if there is a serious risk to campus-wide safety and
security. Several commenters suggested that, in instances where there
are reports by multiple complainants but none are willing to
participate in the proceedings, the Department could ensure
accountability by requiring the recipient to document its reason for
not initiating a formal complaint rather than requiring the recipient
to file a formal complaint in every such situation.
Discussion: The Department appreciates commenters' suggestions for
specific changes to proposed Sec. 106.44(b)(2); however, we decline to
make such changes because we are removing this proposed provision from
the final regulations for the reasons described above. The Department
declines to adopt in these final regulations the suggestion that
patterns of behavior be considered as a factor to determine whether
possible future threats to the community warrant filing a formal
complaint even where a complainant does not wish to file; however, as
discussed above, elimination of proposed Sec. 106.44(b)(2) leaves the
Title IX Coordinator discretion to sign a formal complaint where doing
so is not clearly unreasonable in light of the known circumstances. The
Title IX Coordinator may consider a variety of factors, including a
pattern of alleged misconduct by a particular respondent, in deciding
whether to sign a formal complaint. By giving the recipient's Title IX
Coordinator the discretion to sign a formal complaint in light of the
specific facts and circumstances, the Department believes it has
reached the appropriate balance between campus safety, survivor
autonomy, and respect for the most efficient use of recipients'
resources. We also note that under the final regulations, including
revised Sec. 106.44(a), a Title IX Coordinator's decision to sign a
formal complaint may occur only after the Title IX Coordinator has
promptly contacted the complainant (i.e., the person alleged to have
been victimized by sexual harassment) to discuss availability of
supportive measures, consider the complainant's wishes with respect to
supportive measures, and explain to the complainant the process for
filing a formal complaint. Thus, the Title IX Coordinator's decision to
sign a formal complaint includes taking into account the complainant's
wishes regarding how the recipient should respond to the complainant's
allegations.
The Department disagrees with the suggestion to expand the proposed
provision to cover other circumstances such as alleged use of threats,
violence, or weapons, because we are persuaded by commenters that
leaving the Title IX Coordinator discretion to sign a formal complaint
is preferable to mandating circumstances under which a Title IX
Coordinator must sign a formal complaint. The final regulations give
the Title IX Coordinator discretion to sign a formal complaint, and the
Title IX Coordinator may take circumstances into account such as
whether a complainant's allegations involved violence, use of weapons,
or similar factors. The Department eliminated proposed Sec.
106.44(b)(2) in part due to concerns expressed by commenters about
survivor autonomy and safety; in
[[Page 30218]]
some situations, the Title IX Coordinator may believe that signing a
formal complaint is not in the best interest of the complainant and is
not otherwise necessary for the recipient to respond in a non-
deliberately indifferent manner. With the elimination of this
provision, however, the Title IX Coordinator still possesses the
discretion to sign formal complaints in situations involving threats,
serial predation, violence, or weapons. Even in the absence of a formal
complaint being filed, a recipient has authority under Sec. 106.44(c)
to order emergency removal of a respondent where the situation arising
from sexual harassment allegations presents a risk to the physical
health or safety of any person. Nothing in the final regulations
prevents recipients, Title IX Coordinators, or complainants from
contacting law enforcement to address imminent safety concerns.
Because the final regulations do not include this proposed
provision, the Department does not further consider the commenter's
suggestion to revise the eliminated provision by adding the word
``credible'' before ``reports.'' As discussed previously, the
Department has removed this provision to respect complainant autonomy
and avoid chilling reporting by mandating that a Title IX Coordinator
sign a formal complaint over a complainant's wishes; the commenter's
suggestion for modifying this proposed Sec. 106.44(b)(2) would not
change the Department's belief that the proposed provision should be
removed in its entirety, because narrowing the circumstances under
which the Title IX Coordinator would be required to sign a formal
complaint over the complainant's wishes would not address the concerns
raised by many commenters that persuaded the Department of the need to
respect survivor autonomy by giving a Title IX Coordinator discretion
(without making it mandatory) to sign a formal complaint. The
Department further notes that one of the purposes of the Sec. 106.45
grievance process is to ensure that determinations are reached only
after objective evaluation of relevant evidence by impartial decision-
makers, and therefore permitting or requiring a Title IX Coordinator to
only respond to reports or formal complaints that the Title IX
Coordinator deems ``credible'' would defeat the goal of following a
grievance process to reach reliable outcomes. Similarly, the
commenter's suggestion to require the recipient to document its reason
for not initiating a formal complaint following reports by multiple
complainants does not alter the Department's conclusion that the better
way to respect survivor autonomy and the discretion of a Title IX
Coordinator is to remove proposed Sec. 106.44(b)(2) from the final
regulations, so that a Title IX Coordinator retains the discretion to
sign a formal complaint, but is not mandated to do so. We note that
Sec. 106.45(b)(10) does require a recipient to document the reasons
for its conclusion that its response to any reported sexual harassment
was not deliberately indifferent.
The Department declines to adopt the Harvard Law School model
because we believe the final regulations provide the same or similar
benefits with respect to requiring a grievance process only where a
formal complaint has been filed by a complainant or signed by a Title
IX Coordinator. For reasons discussed in the ``Formal Complaint''
subsection of the ``Section 106.30 Definitions'' section of this
preamble, third parties are not allowed to file formal complaints.
Changes: None.
Proposed Sec. 106.44(b)(3) Supportive Measures Safe Harbor in Absence
of a Formal Complaint [Removed in Final Regulations]
Comments: Many commenters appreciated that the proposed safe harbor
regarding supportive measures would provide an incentive for
institutions to offer supportive measures for both parties. Several
commenters recounted personal stories of accused individuals being
removed from classes and dorms before a determination had been made
about pending allegations. Many commenters supported Sec. 106.44(b)(2)
for not requiring an individual to file a formal complaint in order to
obtain supportive measures and for expressly including the requirement
that, when offering supportive measures, recipients must notify a
complainant of the right to file a formal complaint at a later date if
they wish. Many commenters asserted that often, supportive measures are
sufficient for both parties to deal with a situation without causing
additional trauma to either party.
Some commenters expressed concern that the proposed safe harbor
regarding supportive measures would effectively relieve institutions of
the responsibility to hold respondents accountable and address sexual
harassment on campuses. Many commenters argued that offering ``meager''
supportive measures to a student in lieu of investigating allegations
would not satisfy a recipient's obligations under Title IX and asked
the Department to clarify that the provision of supportive measures is
not always adequate to satisfy the deliberate indifference standard.
Many commenters argued that the proposed safe harbor regarding
supportive measures actually created a barrier to providing supportive
measures for elementary and secondary school victims because the
provision applied only to institutions of higher education, and asked
the Department to modify the proposed rules to extend this supportive
measures safe harbor to the elementary and secondary school context
either by creating a separate safe harbor with nearly identical
language or by deleting the phrase ``for institutions of higher
education'' in the proposed regulatory text. One commenter asserted
that Sec. 106.44(b)(3) is redundant because it merely repeats the
standard of Sec. 106.44(a). One commenter argued that, when combined
with the Department's proposed definition of sexual harassment, this
proposed provision would create a safe harbor for educational
institutions to avoid liability.
Other commenters suggested that the Department modify the proposed
safe harbor regarding supportive measures to expressly prohibit
institutions from coercing a complainant into accepting supportive
measures in lieu of filing a formal complaint. At least one commenter
suggested adding an outer time limit to a party's right to file a
formal complaint ``at a later time,'' asserting that this proposed
provision was inconsistent with the recordkeeping requirement in the
proposed regulations, which would have allowed a record to be destroyed
in three years (this retention period has been revised to seven years
in Sec. 106.45(b)(10) of the final regulations).
Discussion: As explained in the ``Section 106.44(b) Proposed `Safe
harbors,' generally,'' subsection of the ``Recipient's Response in
Specific Circumstances'' section of this preamble, these final
regulations do not include the safe harbor provision that a recipient
is not deliberately indifferent when in the absence of a formal
complaint the recipient offers and implements supportive measures
designed to effectively restore or preserve the complainant's access to
the recipient's education program or activity, and the recipient also
informs the complainant in writing of the right to file a formal
complaint. This safe harbor is now unworkable and unnecessary in light
of other revisions made to the proposed regulations, specifically a
recipient's obligations in Sec. 106.44(a) and Sec. 106.45(b)(10)(ii).
Under Sec. 106.44(a), a recipient's response must treat complainants
and
[[Page 30219]]
respondents equitably by offering supportive measures as defined in
Sec. 106.30, and a Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as
defined in Sec. 106.30, consider the complainant's wishes with respect
to supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain to the complainant the process for filing a formal
complaint. As previously explained, Sec. 106.45(b)(1) now contains an
additional mandate that with or without a formal complaint, a recipient
must comply with Sec. 106.44(a), which places recipients on notice
that it must offer supportive measures to a complainant. Additionally,
under Sec. 106.45(b)(10)(ii), if a recipient does not provide a
complainant with supportive measures, then the recipient must document
why such a response was not clearly unreasonable in light of the known
circumstances. As recipients are now required to offer supportive
measures to a complainant and to document why not providing a
complainant with supportive measures was not clearly unreasonable in
light of the known circumstances, the final regulations no longer
provides a safe harbor. Recipients cannot receive a safe harbor for
offering supportive measures because recipients are now required to
offer supportive measures under these final regulations. Accordingly,
the Department does not include the proposed safe harbor regarding
supportive measures in these final regulations.
With respect to concerns that respondents may suffer disciplinary
sanctions or punitive action stemming from pending allegations, the
Department notes that Sec. 106.44(a) expressly provides that a
recipient's response must treat complainants and respondents equitably
by offering supportive measures as defined in Sec. 106.30 to a
complainant, and 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 as defined in Sec.
106.30, against a respondent. Additionally, supportive measures in
Sec. 106.30 are expressly defined as non-disciplinary, non-punitive
individualized services offered as appropriate, as reasonably
available, and without fee or charge to the complainant or the
respondent. Supportive measures must not have a punitive or
disciplinary consequence for either complainants or respondents.
Even without the proposed safe harbor provision regarding
supportive measures, the Department believes that these final
regulations appropriately draw recipients' attention to the importance
of offering supportive measures to all students, including students who
do not wish to initiate a recipient's formal grievance process, and
thus give complainants greater autonomy to decide if supportive
measures, alone, represent the kind of school-level response that will
best help the complainant heal after any trauma. The Department in part
requires a recipient to offer supportive measures to all complainants
under Sec. 106.44(a) because the Department recognizes that, in many
cases, a complainant's equal access to education can be effectively
restored or preserved through the school's provision of supportive
measures. Accordingly, the Department provides an additional mandate in
Sec. 106.44(b)(1), that with or without a formal complaint, a
recipient must comply with Sec. 106.44(a) (e.g., by offering the
complainant supportive measures).
We are persuaded by commenters' assertions that providing
supportive measures to a complainant does not always satisfy a
recipient's obligation to respond in a non-deliberately indifferent
manner to known sexual harassment. In some circumstances and depending
on the unique facts, a non-deliberately indifferent response may
require the recipient's Title IX Coordinator to sign a formal complaint
as defined in Sec. 106.30 so that the recipient initiates the
grievance process in Sec. 106.45. The Department acknowledges that a
recipient should respect the complainant's autonomy and wishes with
respect to a formal complaint and grievance process to the extent
possible.
As the proposed safe harbor regarding supportive measures is no
longer included in these final regulations, we do not revisit whether
excluding elementary and secondary school recipients from this safe
harbor was preferable to modifying the proposed safe harbor to also
apply to elementary and secondary schools. Revised Sec. 106.44(a)
requires every recipient (including elementary and secondary schools)
to offer supportive measures to complainants.
The Department understands the concern that a recipient may coerce
potential complainants into accepting supportive measures in lieu of a
formal grievance process. Partly in response to these concerns, the
Department revised Sec. 106.44(a) to require that a Title IX
Coordinator promptly contact a complainant not only to discuss
supportive measures but also to explain to the complainant the process
for filing a formal complaint. Accordingly, a complainant will know how
to file a formal complaint, if the complainant wishes to do so. We have
also added Sec. 106.71 to expressly forbid a recipient from
threatening, intimidating, coercing, or discriminating against any
complainant for the purpose of chilling the complainant's exercise of
any rights under Title IX, which includes the right to file a formal
complaint, and to receive supportive measures even if the complainant
chooses not to file a formal complaint.
The Department agrees that the safe harbor, as proposed, is
redundant, especially in light of the revisions to Sec. 106.44(a),
requiring a recipient to offer supportive measures to a complainant. As
this safe harbor is not included in these final regulations, this safe
harbor does not provide a way for a recipient to avoid responsibility.
For reasons discussed above, the Department declines to revise the
final regulations to include a statute of limitations or similar time
limit on filing a formal complaint but as discussed in the ``Formal
Complaint'' subsection of the ``Section 106.30 Definitions'' section of
this preamble, the Department has revised the final regulations to
provide that at the time of filing a formal complaint, the complainant
must be participating in or attempting to participate in the
recipient's education program or activity. This provides a reasonable
condition on a complainant's ability to require a recipient to
investigate, based on the complainant's connection to the recipient's
education program or activity rather than by imposing a statute of
limitations or similar time-based deadline. A complainant may be
``attempting to participate'' in the recipient's education program or
activity in a broad variety of circumstances that do not depend on a
complainant being, for instance, enrolled as a student or employed as
an employee. A complainant may be ``attempting to participate,'' for
example, where the complainant has withdrawn from the school due to
alleged sexual harassment and expresses a desire to re-enroll if the
recipient responds appropriately to the sexual harassment allegations,
or if the complainant has graduated but would like to participate in
alumni events at the school, or if the complainant is on a leave of
absence to seek counseling to recover from trauma. In addition, the
Department has also revised the final regulations to provide in Sec.
106.45(b)(3)(ii) that a recipient has the discretion to dismiss a
formal complaint
[[Page 30220]]
against a respondent who is no longer enrolled or employed by the
recipient. While these provisions are not an express limit on the
amount of time a complainant has to file a formal complaint, the
Department believes these provisions help address commenters' concerns
about being forced to expend resources investigating situations where
one or both parties have no affiliation with the recipient, without
arbitrarily or unreasonably imposing a deadline on complainants, in
recognition that complainants sometimes do not report or desire to
pursue a formal process in the immediate aftermath of a sexual
harassment incident.
Changes: The Department does not include the safe harbor provision
proposed in the NPRM as Sec. 106.44(b)(3). The Department adds a
mandate to Sec. 106.44(b)(1) that the recipient must comply with Sec.
106.44(a), with or without a formal complaint.
Section 106.44(b)(2) OCR Will Not Re-Weigh the Evidence
Comments: Some commenters appreciated that the proposed rules
contained an express guarantee that an institution will not be deemed
deliberately indifferent solely because the Assistant Secretary would
have reached a different determination regarding responsibility based
on an independent weighing of the evidence. Some commenters expressed
concerns that Sec. 106.44(b)(2) would result in a lack of
accountability or oversight for how schools or colleges handle sexual
harassment complaints. Other commenters contended that this provision
would unjustifiably reduce the Department's oversight unless a school's
actions are clearly unreasonable. Some commenters asserted that the
provision would improperly defer to a school district's determination,
which commenters argued is not always the appropriate way to ensure
Title IX accountability. A number of commenters felt that Sec.
106.44(b)(2) would spur more civil lawsuits to hold schools
accountable, because the Department would no longer be holding schools
accountable.
Several commenters argued that the proposed provision would
negatively impact OCR's ability to investigate non-compliance under
Title IX, which would dangerously lower the bar of compliance and
signal that a bare, minimal response to sexual harassment would
suffice. Other commenters warned that the provision would limit OCR's
ability to evaluate a school's response to sexual harassment, which
would effectively narrow over 20 years of Title IX enforcement
standards. Several commenters expressed their belief that OCR plays a
key role as an independent, impartial investigator. For example, one
commenter argued that OCR, as an independent entity, is more qualified
than a school to perform an impartial investigation because the school
has its own financial interests at stake and is thus less likely to
identify inaccuracies in its own procedures. Another commenter asserted
that OCR's independent weighing of evidence is a relevant factor
because it may allow OCR to identify patterns or practices of shielding
respondents or favoring complainants; the commenter argued that OCR
should, after a thorough investigation, have discretion to decide if a
school's determination regarding responsibility was discriminatory.
Some commenters expressed concern that proposed Sec. 106.44(b)(2)
was one-sided in a way that favored only respondents, because the
language in the proposed provision would give deference to the school's
determinations only where a respondent has been found not responsible.
Commenters argued that as proposed, Sec. 106.44(b)(2) would require
OCR investigators to close investigations even if OCR found gross or
malicious procedural violations affecting the determination reached by
the school, as long as the school had determined the respondent to be
not responsible. Another commenter expressed concern that a deferential
procedural review by OCR may incentivize schools to find in favor of
respondents so as to avoid OCR scrutiny; commenters argued that this
would be perceived as biased against complainants, may chill reporting
of sexual harassment at the school level, and would discourage
complainants from filing OCR complaints alleging procedural defects
that led to erroneous findings of non-responsibility.
Another commenter asserted that proposed Sec. 106.44(b)(2) was
inconsistent with Equal Employment Opportunity Commission (EEOC)
practices with respect to employee sexual harassment claims; the
commenter stated that the EEOC never defers to an employer's conclusion
but conducts its own investigation and makes an independent assessment
of the facts so that employers do not avoid liability merely by
conducting exculpatory internal investigations. The commenter also
asserted that applying Sec. 106.44(b)(2) to employee sexual harassment
claims would conflict with U.S. Department of Justice equal employment
opportunity coordination regulations' requirement that a referring
agency must give due weight to an EEOC determination of reasonable
cause to believe that Title VII has been violated,\943\ which OCR could
not give if it instead gave conclusive weight to a recipient's contrary
factual determination.
---------------------------------------------------------------------------
\943\ 28 CFR 42.610(a).
---------------------------------------------------------------------------
Conversely, some commenters expressed support for Sec.
106.44(b)(2). Commenters asserted that this provision, combined with
other provisions in the proposed rules, would assist colleges and
universities in ensuring an impartial, transparent, and fair process
for both complainants and respondents, while also providing
institutions flexibility reflecting their unique attributes (e.g.,
size, student population, location, mission). Several commenters
expressed support for OCR not ``second guessing'' a school's response
to incidents of sexual harassment. One commenter asserted that the
provision was reasonable because OCR should not intrude into a school's
decision making based on OCR's own weighing of the evidence.
One commenter expressed confusion as to whether OCR would defer to
schools' determinations about sex discrimination not involving sexual
harassment, or in instances when a person who filed a complaint with a
recipient could have filed directly with OCR. Another commenter
suggested clarifying that further scrutiny by OCR is not barred by this
provision and may be called for if a responsibility determination seems
to hold little basis.
Discussion: We appreciate commenters' concerns about, and support
of, Sec. 106.44(b)(2). The intent of this provision is to convey that
the Department will not overturn the outcome of a Title IX grievance
process solely based on whether the Department might have weighed the
evidence in the case differently from how the recipient's decision-
maker weighed the evidence.
This provision does not limit OCR's ability to evaluate a school's
response to sexual harassment, and it does not narrow Title IX
enforcement standards; OCR retains its full ability, and
responsibility, to oversee recipients' adherence to the requirements of
Title IX, including requirements imposed under these final regulations.
The Department agrees with commenters who stated that OCR has special
qualifications that enable OCR to perform independent, impartial
investigations into whether recipients have violated Title IX and Title
IX regulations. The Department will continue to vigorously enforce
[[Page 30221]]
recipients' Title IX obligations.\944\ The Department believes that the
Sec. 106.45 grievance process prescribes fair procedures likely to
result in reliable outcomes; however, when a recipient does not comply
with the requirements of Sec. 106.45, nothing in Sec. 106.44(b)(2)
precludes the Department from holding the recipient accountable for
violating these final regulations. Refraining from second guessing the
determination reached by a recipient's decision-maker solely because
the evidence could have been weighed differently does not prevent OCR
from identifying and correcting any violations the recipient may have
committed during the Title IX grievance process. The deference given to
the recipient's determination regarding responsibility in Sec.
106.44(b)(2) does not preclude OCR from overturning a determination
regarding responsibility where setting aside the recipient's
determination is necessary to remedy a recipient's violations of these
final regulations. Rather, Sec. 106.44(b)(2) promotes finality for
parties and recipients by stating that OCR will not overturn
determinations just because OCR would have weighed the evidence in the
case differently. To clarify this point, we have revised Sec.
106.44(b)(2) to use the phrase ``solely because'' instead of ``merely
because.'' Nothing about Sec. 106.44(b)(2) prevents OCR from taking
into account the determination regarding responsibility as one of the
factors OCR considers in deciding whether a recipient has complied with
these final regulations, and whether any violations of these final
regulations may require setting aside the determination regarding
responsibility in order to remediate a recipient's violations.
---------------------------------------------------------------------------
\944\ See further discussion in the ``Section 106.3(a) Remedial
Action'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble, regarding remedies the
Department may pursue in administrative enforcement actions against
recipients.
---------------------------------------------------------------------------
If a recipient has not complied with any provision of the final
regulations, nothing in Sec. 106.44(b)(2) prevents OCR from holding
the recipient accountable for non-compliance. The intent of the
provision is to assure recipients that because the Sec. 106.45
grievance process contains robust procedural and substantive
requirements designed to produce reliable outcomes, OCR will not
substitute its judgment for that of the recipient's decision-maker with
respect to weighing the relevant evidence at issue in a particular
case.
We believe that this limited deference also serves the interests of
complainants and respondents in resolving sexual harassment
allegations, by limiting the circumstances under which a ``final''
determination reached by the recipient may be subject to being setting
aside and requiring the parties to go through a grievance process for a
second time. As an example, if a decision-maker evaluates the relevant
evidence in a case and judges one witness to be more credible than
another witness, or finds one item of relevant evidence to be more
persuasive than another item of relevant evidence, Sec. 106.44(b)(2)
provides that OCR will not set aside the determination regarding
responsibility solely because OCR would have found the other witness
more credible or the other item of evidence more persuasive. It does
not mean that OCR would refrain from holding the recipient accountable
for violations of the decision-maker's obligations, for instance to
avoid basing credibility determinations on a party's status as a
complainant, respondent, or witness.\945\ This provision does not meant
that OCR would refrain from, for instance, independently determining
that evidence deemed relevant by the decision-maker was in fact
irrelevant and should not have been relied upon.\946\ Violations of
these final regulations may indeed result in a recipient's
determination regarding responsibility being set aside by OCR, but
determinations will not be overturned ``solely'' because OCR would have
weighed the evidence differently.
---------------------------------------------------------------------------
\945\ Section 106.45(b)(1)(ii).
\946\ E.g., Sec. 106.45(b)(6) (deeming questions and evidence
about a complainant's prior sexual history to be irrelevant, with
limited exceptions); Sec. 106.45(b)(1)(x) (barring use of
privileged information in the grievance process).
---------------------------------------------------------------------------
Some commenters understood this provision to work in a one-sided
way, giving recipients' determinations regarding responsibility
deference only where a respondent has been found not responsible; one
commenter reached this conclusion based on the provision's reference to
``deliberate indifference'' which is a theory usually only raised by
complainants challenging the sufficiency of a recipient's response to
sexual harassment. The Department appreciates these commenters'
concerns; we intend this provision to apply equally to all outcomes,
regardless of whether the determination found a respondent responsible
or not responsible. For this reason, the provision uses the phrase
``determination regarding responsibility'' (emphasis added) and not
determination of responsibility.\947\ However, to clarify that this
provision applies to all determinations of the outcome of a Title IX
grievance process regardless of whether the respondent was found
responsible or not responsible, we have revised Sec. 106.44(b)(2) by
adding ``or otherwise evidence of discrimination under title IX by the
recipient'' so that the reference in this provision to ``deliberate
indifference'' is not misunderstood to exclude theories of sex
discrimination commonly raised by respondents after being found
responsible. This additional phrase in Sec. 106.44(b)(2) clarifies
that this provision operates neutrally to all determinations regarding
responsibility. The Department will not overturn the recipient's
finding solely because the Department would have reached a different
determination based on an independent weighing of the evidence,
irrespective of whether the recipient found in favor of the complainant
or the respondent. Whether the recipient found the respondent not
responsible (and thus a complainant might allege deliberate
indifference) or the recipient found the respondent responsible (and
thus a respondent might allege sex discrimination under Title IX on a
theory such as selective enforcement or erroneous outcome), this
provision would equally apply to give deference to the recipient's
determination where the challenge to the determination is solely based
on whether the Department might have weighed the evidence differently.
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\947\ We use the phrase ``determination of responsibility''
(emphasis added) to describe a finding that the respondent is
responsible for perpetrating sexual harassment, and ``determination
regarding responsibility'' to describe a determination irrespective
of whether that determination has found the respondent responsible,
or not responsible. E.g., compare Sec. Sec. 106.45(b)(1)(i) and
106.45(b)(1)(vi) with Sec. Sec. 106.45(b)(1)(iv), 106.45(b)(2),
106.45(b)(5)(i), 106.45(b)(5)(vi)-(vii), 106.45(b)(6) through
106.45(b)(10).
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In no manner does this limited deference by the Department restrict
the Department's ability to identify patterns or practices of sex
discrimination, or to investigate allegations of a recipient committing
gross or malicious violations of Title IX or these final regulations.
This provision gives a recipient deference only as to the decision-
maker's weighing of evidence with respect to a determination regarding
responsibility. Section 106.44(b)(2) simply clarifies OCR's role and
standard of review under these final regulations, by providing that OCR
will not conduct de novo reviews of determinations absent allegations
that the recipient failed in some way to comply with Title IX or these
final regulations. The provision is intended to alleviate potential
confusion recipients may feel about needing to successfully predict how
the Department would make factual
[[Page 30222]]
determinations ``in the shoes'' of the recipient's decision-maker.
Indeed, it would be impractical and unhelpful, for all parties, if
the Department conducted de novo reviews of all recipient
determinations. Doing so would contravene the Department's goal of
providing consistency, predictability, transparency, and reasonably
prompt resolution, in Title IX grievance processes. The Department
disagrees that Sec. 106.44(b)(2) ``dangerously'' lowers the bar of
compliance by signaling that recipients need only provide a ``bare
minimum response'' to sexual harassment. The requirements of the final
regulations do not constitute a low bar; rather, these final
regulations expect--and the Department will hold recipients accountable
for--responses to sexual harassment allegations that support
complainants and treat both parties fairly by complying with specific,
mandatory obligations. For instance, under the final regulations
recipients are required to offer supportive measures to every
complainant regardless of whether a grievance process is ever
initiated.\948\ When a recipient does investigate a complainant's
sexual harassment allegations, the final regulations prescribe a
grievance process that lays out clear, practical steps for processing a
formal complaint of Title IX sexual harassment, including requirements
that recipients: Treat complainants and respondents equitably by
providing remedies for complainants when a respondent is found
responsible, and a grievance process prior to imposing disciplinary
sanctions or other actions that are not supportive measures, against a
respondent; \949\ objectively evaluate all relevant evidence and give
both parties equal opportunity to present witnesses and evidence; \950\
not harbor a bias or conflict of interest against either party; \951\
and resolve the allegations under designated, reasonably prompt time
frames.\952\ The Department will hold recipients accountable to follow
these, and all the other, requirements set forth in Sec. 106.45,
whether failure to comply affected the complainant, the respondent, or
both parties.
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\948\ Section 106.44(a).
\949\ Section 106.45(b)(1)(i).
\950\ Section 106.45(b)(1)(ii); Sec. 106.45(b)(5)(ii).
\951\ Section 106.45(b)(1)(iii).
\952\ Section 106.45(b)(1)(v).
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The Department does not agree that Sec. 106.44(b)(2) will lead to
increased litigation. The final regulations require recipients to
protect complainants' equal educational access, while at the same time
providing both parties due process protections throughout any grievance
process, and Sec. 106.44(b)(2) does not impair the Department's
ability to hold recipients accountable for meeting these obligations.
The Department does not believe that courts are inclined through
private lawsuits to second guess a recipient's determinations regarding
responsibility absent allegations that the recipient arrived at a
determination due to discrimination, bias, procedural irregularity,
deprivation of constitutionally guaranteed due process protections, or
other defect that affected the outcome; in other words, the limited
deference in Sec. 106.44(b)(2) is no greater than the deference courts
generally also give to recipients' determinations.\953\ As discussed in
the ``Litigation Risk'' subsection of the ``Miscellaneous'' section of
this preamble, the Department believes that these final regulations may
have the effect of reducing litigation arising out of recipients'
responses to sexual harassment.
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\953\ E.g., Wood v. Strickland, 420 U.S. 308, 326 (1975),
overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800
(1982) (absent ``errors in the exercise of school officials'
discretion'' that ``rise to the level of violations of specific
constitutional guarantees''--as would reaching a determination in
the complete ``absence of evidence'' which would be arbitrary and
capricious--42 U.S.C. 1983 ``does not extend that right to
relitigate in federal court evidentiary questions arising in school
disciplinary proceedings''); Nicholas B. v. Sch. Comm. of Worcester,
412 Mass. 20, 23-24 (1992) (rejecting a student's claim that the
student is ``entitled to an independent judicial determination of
the facts'' concerning the school's finding that the student
committed battery'') (holding that ``In deciding whether the
discipline imposed was lawful, no de novo judicial fact-finding is
required'' and rejecting the contention that the State legislature,
in enacting the State Civil Rights Act ``intended a de novo review
of the factual determinations of a school committee in an action
challenging school discipline'') (citing Wood, 420 U.S. at 326). The
Department's view of restraint from conducting de novo review of
recipient determinations regarding responsibility is consistent with
judicial views recognizing that this type of limited restraint in no
way impairs the ability of the courts to effectuate the purposes of
Federal and State civil rights statutes. Similarly, Sec.
106.44(b)(2) in no way impairs the Department's ability to
effectuate the purposes of Title IX.
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These final regulations do not apply to the EEOC and do not dictate
how the EEOC will administer Title VII or its implementing regulations.
If the Assistant Secretary refers a complaint filed with OCR to the
EEOC under Title VII or 28 CFR 42.605, then the EEOC will make a
determination under its own regulations and not the Department's
regulations. Even if the Department is required to give due weight to
the EEOC's determination regarding Title VII under 28 CFR 42.610(a),
the Department does not have authority to administer or enforce Title
VII. There may be incidents of sexual harassment that implicate both
Title VII and Title IX, and this Department will continue to administer
Title IX and its implementing regulations and to defer to the EEOC to
administer Title VII and its implementing regulations. Nothing in these
final regulations precludes the Department from giving due weight to
the EEOC's determination regarding Title VII under 28 CFR
42.610(a).\954\ The Department recognizes that employers must fulfill
their obligations under Title VII and also under Title IX. There is no
inherent conflict between Title VII and Title IX, and the Department
will construe Title IX and its implementing regulations in a manner to
avoid an actual conflict between an employer's obligations under Title
VII and Title IX.
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\954\ 28 CFR 42.610(c) also states: ``If the referring agency
determines that the recipient has not violated any applicable civil
rights provision(s) which the agency has a responsibility to
enforce, the agency shall notify the complainant, the recipient, and
the Assistant Attorney General and the Chairman of the EEOC in
writing of the basis of that determination.'' Accordingly, these
regulations contemplate that each agency enforces the civil rights
provisions that the agency has the responsibility to enforce.
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The Department wishes to clarify that Sec. 106.44(b)(2) applies
only to determinations regarding responsibility reached in a Sec.
106.45 grievance process, which in turn applies only to formal
complaints (defined in Sec. 106.30 to mean allegations of sexual
harassment); the Sec. 106.45 grievance process does not apply to
complaints about other types of sex discrimination. Complaints about
sex discrimination that is not sexual harassment may be filed with the
recipient for processing under the prompt and equitable grievance
procedures that recipients must adopt under Sec. 106.8. We appreciate
the opportunity to clarify that no regulation or Department practice
precludes a person from filing a complaint with OCR, whether or not the
person also could have filed, or did file, a complaint with the school.
Changes: Section 106.44(b)(2) is revised to reference not only
deliberate indifference but also other sex discrimination under Title
IX, and to replace the word ``merely'' with ``solely'' in the phrase
describing situations in which the Assistant Secretary would have
reached a different determination based on an independent weighing of
the evidence.
[[Page 30223]]
Additional Rules Governing Recipients' Responses to Sexual Harassment
Section 106.44(c) Emergency Removal
Overall Support and Opposition to Emergency Removals
Comments: Some commenters believed that Sec. 106.44(c) provides
due process protections for respondents while protecting campus safety.
Some commenters supported this provision because it allows educational
institutions to respond to situations of immediate danger, while
protecting respondents from unfair or unnecessary removals. At least
one commenter appreciated the latitude granted to educational
institutions under Sec. 106.44(c) to determine how to address safety
emergencies arising from allegations of sexual harassment. Some
commenters asserted that this provision appropriately reflects many
schools' existing behavior risk assessment procedures. Several
commenters supported Sec. 106.44(c) and recounted personal stories of
how a respondent was removed from classes, or from school, and the
negative impact the removal had on that student's professional,
academic, or extracurricular life because the removal seemed to presume
the ``guilt'' of the respondent without allegations ever being proved.
Some commenters wanted to omit the emergency removal provision
entirely, arguing that if administrators at the postsecondary level
have the power to preemptively suspend or expel a student, on the
pretext of an emergency, then every sexual misconduct situation could
be deemed an emergency and respondents would never receive the due
process protections of the Sec. 106.45 grievance process. One
commenter suggested that instead of permitting removals, all
allegations of sexual harassment should simply go through a more rapid
investigation so that the respondent may remain in school and victims
are protected, while any falsely accused respondent is quickly
exonerated. Some commenters requested that this removal power be
limited because of the negative consequences of involuntary removal;
one commenter suggested the provision be modified so that the removal
must be ``narrowly tailored'' and ``no more extensive than is strictly
necessary'' to mitigate the health or safety risk. One commenter
asserted that this provision should also require that interim emergency
removals be based on objective evidence and on current medical
knowledge where appropriate, made by a licensed, qualified evaluator.
Some commenters asserted that emergency removals should not be used
just because sexual harassment or assault has been alleged, and that
Sec. 106.44(c) should more clearly define what counts as an emergency.
Some commenters argued that emergency removals should be allowed if the
sexual harassment allegation involves rape, but no emergency removal
should be allowed if the sexual harassment allegation involves
offensive speech.
Commenters argued that Sec. 106.44(c) is unclear as to what
constitutes an immediate threat to health or safety. Several commenters
argued that emergency removals should be restricted to instances where
there is ``an immediate threat to safety'' (not health), while other
commenters argued this provision must be limited to ``physical''
threats to health or safety. Commenters argued that a ``threat to
health or safety'' is too nebulous a concept to justify immediate
removal from campus. According to one commenter, even speaking on
campus in favor of the NPRM could be construed by schools or student
activists as a threat to the emotional or mental ``health or safety''
of survivors, even though discussion of public policy is core political
speech protected by the First Amendment.
One commenter stated that the use of the plural ``students and
employees'' in Sec. 106.44(c) may preclude an institution from taking
emergency action when the immediate threat is to a single student or
employee. Commenters argued that postsecondary institutions need the
flexibility to address immediate threats to the safety of one student
or employee in the same manner as threats to multiple students or
employees. Some commenters asserted that Sec. 106.44(c) would
unreasonably limit a postsecondary institution's ability to protect
persons and property, or to protect against potential disruption of the
educational environment, and argued that an institution should have the
discretion to invoke an emergency removal under circumstances beyond
those listed in Sec. 106.44(c). Commenters argued that Sec. 106.44(c)
is too limiting because it does not allow recipients to pursue an
emergency removal where the respondent poses a threat of illegal
conduct that is not about a health or safety emergency; commenters
contended this will subject the complainant or others to ongoing
illegal conduct just because it does not constitute a threat to health
or safety. Commenters argued that in addition to a health or safety
threat, this provision should consider the need to restore or preserve
equal access to education as justification for emergency removals. One
commenter asserted that a legitimate reason to institute an emergency
removal of a respondent is a threat that the respondent may obstruct
the collection of relevant information regarding the sexual harassment
allegations at issue.
One commenter cited New York Education Law Article 129-B as an
example of a detailed framework under which campus officials may
conduct an individualized threat assessment, order an interim
suspension, and provide due process; commenters asserted that courts
hold that the due process required for an interim suspension does not
need to consist of a full hearing.\955\ Another commenter argued that
this provision would constitute an unprecedented Federal preemption of
Oregon's existing State and local student discipline rules, which
establish the due process requirements for emergency removals from
school. Commenters argued that Sec. 106.44(c) would create a higher
level of due process for emergency removals in situations that involve
alleged sexual harassment than for any other behavioral violation, and
that the proposed rules are unclear whether this heightened procedural
requirement is triggered only when a complainant alleges sexual
harassment as defined in Sec. 106.30, or is also triggered in any case
where a complainant alleges sexual harassment that meets a State law
definition or school code of conduct that may define sexual harassment
more broadly than conduct meeting the Sec. 106.30 definition.
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\955\ Commenters cited: Haidak v. Univ. of Mass. at Amherst, 299
F. Supp. 3d 242, 265-66 (D. Mass. 2018), aff'd in part, vacated in
part, remanded by Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st
Cir. 2019).
---------------------------------------------------------------------------
Some commenters suggested that Sec. 106.44(c) be modified to
require periodic review of any emergency removal decision, to promote
transparency and eliminate the possibility of leaving a respondent on
interim suspension indefinitely. Commenters argued that immediate
removal is very traumatic, and respondents who have been removed have a
significant potential to react by harming themselves or others thus
recipients should reduce these risks by ensuring a safe exit plan with
adequate support for the respondent in place.
Commenters asserted that the goal should be to preserve educational
opportunities for all parties involved to the extent possible, so Sec.
106.44(c) should require recipients to provide alternative academic
accommodations for respondents who are removed. Some
[[Page 30224]]
commenters suggested that this provision should address a respondent's
access to a recipient's program or activity, post-removal. Because
emergency removal is not premised on a finding of responsibility and
occurs ex parte, commenters argued that the recipient should be
required to provide a respondent with alternative access to the
respondent's academic classes during the period of removal and that
failure to do so would be sex discrimination against the respondent.
Some commenters argued that as to a respondent who is removed on an
emergency basis and later found to be not responsible, the final
regulations should require the recipient to mitigate the damage caused
by the removal, for example, by allowing the respondent to retake
classes or exams missed during the removal. One commenter suggested
that a recipient should secure the personal property of the removed
person (such as the respondent's vehicle) and be responsible for any
loss or damage occurring to personal property during a removal.
Other commenters asserted that an individualized risk assessment
should be required after every report of sexual assault. Commenters
argued that because insurance statistics show a high degree of
recidivism among college rapists, and because Title IX is also supposed
to deter discrimination based on sex, schools should be required to
consider the safety of other students on their campus if they know
there is a possible sexual assailant in their midst.
One commenter suggested that licensing board procedures provide the
best model for campus procedures because they offer the closest
parallel to the types of behavior evaluated and issues at stake for
respondents such as reputation, future livelihood, and future
opportunities; the commenter asserted that court precedents hold that
both public and private recipients must follow principles of
fundamental due process and fundamental fairness in disciplinary
processes,\956\ and professional licensing board procedures adequately
protect due process. One commenter applauded the Department for
proposing to provide greater due process protections than what current
procedures typically provide; however, this commenter asserted that
Native American students attending institutions funded by the Bureau of
Indian Affairs receive strong due process protections, including
greater due process with respect to emergency removals than what Sec.
106.44(c) provides, and the commenter contended that the stronger due
process protections should be extended to non-Native American
institutions.\957\ According to this commenter, unlike Native American
students attending schools funded by the Bureau of Indian Affairs, non-
Native American students are at risk for permanent removal from campus
with potentially devastating consequences.
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\956\ Commenter cited: Boehm v. Univ. of Pa. Sch. of Veterinary
Med., 573 A.2d 575, 578 (Pa. Super. Ct. 1990).
\957\ Commenters cited: 25 CFR 42.1-42.10.
---------------------------------------------------------------------------
One commenter asserted that Sec. 106.44(c) should explicitly
require the recipient to comply with the Clery Act, notify appropriate
authorities, and provide any necessary safety interventions. Another
commenter stated that recipients should be required to publicly report
the annual number of emergency removals the recipient conducts under
Sec. 106.44(c).
Some commenters asserted that recipients need to do more than
simply remove a respondent from its education program or activity.
Commenters argued that trauma from sexual assault may cause a
complainant to withdraw from an education program or activity,
including due to fear of seeing the respondent, suggested that more
resources should be made available to complainants, and asserted that
the final regulations should specify best practices addressing how a
recipient should respond to immediate threats.
Discussion: We appreciate commenters' support for the emergency
removal provision in Sec. 106.44(c). Revised in ways explained below,
Sec. 106.44(c) provides that in situations where a respondent poses an
immediate threat to the physical health and safety of any individual
before an investigation into sexual harassment allegations concludes
(or where no grievance process is pending), a recipient may remove the
respondent from the recipient's education programs or activities. A
recipient may need to undertake an emergency removal in order to
fulfill its duty not to be deliberately indifferent under Sec.
106.44(a) and protect the safety of the recipient's community, and
Sec. 106.44(c) permits recipients to remove respondents in emergency
situations that arise out of allegations of conduct that could
constitute sexual harassment as defined in Sec. 106.30. Emergency
removal may be undertaken in addition to implementing supportive
measures designed to restore or preserve a complainant's equal access
to education.\958\ While we recognize that emergency removal may have
serious consequences for a respondent, we decline to remove this
provision because where a genuine emergency exists, recipients need the
authority to remove a respondent while providing notice and opportunity
for the respondent to challenge that decision.
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\958\ Section 106.44(a) requires a recipient to offer supportive
measures to every complainant, including by having the Title IX
Coordinator engage with the complainant in an interactive process
that takes into account the complainant's wishes regarding available
supportive measures.
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The Department does not believe that rushing all allegations of
sexual harassment or sexual assault through expedited grievance
procedures adequately promotes a fair grievance process, and forbidding
an emergency removal until conclusion of a grievance process (no matter
how expedited such a process reasonably could be) might impair a
recipient's ability to quickly respond to an emergency situation. The
Sec. 106.45 grievance process is designed to provide both parties with
a prompt, fair investigation and adjudication likely to reach an
accurate determination regarding the responsibility of the respondent
for perpetrating sexual harassment. Emergency removal under Sec.
106.44(c) is not a substitute for reaching a determination as to a
respondent's responsibility for the sexual harassment allegations;
rather, emergency removal is for the purpose of addressing imminent
threats posed to any person's physical health or safety, which might
arise out of the sexual harassment allegations. Upon reaching a
determination that a respondent is responsible for sexual harassment,
the final regulations do not restrict a recipient's discretion to
impose a disciplinary sanction against the respondent, including
suspension, expulsion, or other removal from the recipient's education
program or activity. Section 106.44(c) allows recipients to address
emergency situations, whether or not a grievance process is underway,
provided that the recipient first undertakes an individualized safety
and risk analysis and provides the respondent notice and opportunity to
challenge the removal decision. We do not believe it is necessary to
restrict a recipient's emergency removal authority to removal decisions
that are ``narrowly tailored'' to address the risk because Sec.
106.44(c) adequately requires that the threat ``justifies'' the
removal. If the high threshold for removal under Sec. 106.44(c) exists
(i.e., an individualized safety and risk analysis determines the
respondent poses an immediate threat to any person's physical health or
safety), then
[[Page 30225]]
we believe the recipient should have discretion to determine the
appropriate scope and conditions of removal of the respondent from the
recipient's education program or activity. Similarly, we decline to
require recipients to follow more prescriptive requirements to
undertake an emergency removal (such as requiring that the assessment
be based on objective evidence, current medical knowledge, or performed
by a licensed evaluator). While such detailed requirements might apply
to a recipient's risk assessments under other laws, for the purposes of
these final regulations under Title IX, the Department desires to leave
as much flexibility as possible for recipients to address any immediate
threat to the physical health or safety of any student or other
individual. Nothing in these final regulations precludes a recipient
from adopting a policy or practice of relying on objective evidence,
current medical knowledge, or a licensed evaluator when considering
emergency removals under Sec. 106.44(c).
We agree that emergency removal is not appropriate in every
situation where sexual harassment has been alleged, but only in
situations where an individualized safety and risk analysis determines
that an immediate threat to the physical health or safety of any
student or other individual justifies the removal, where the threat
arises out of allegations of sexual harassment as defined in Sec.
106.30. Because all the conduct that could constitute sexual harassment
as defined in Sec. 106.30 is serious conduct that jeopardizes a
complainant's equal access to education, we decline to limit emergency
removals only to instances where a complainant has alleged sexual
assault or rape, or to prohibit emergency removals where the sexual
harassment allegations involve verbal harassment. A threat posed by a
respondent is not necessarily measured solely by the allegations made
by the complainant; we have revised Sec. 106.44(c) to add the phrase
``arising from the allegations of sexual harassment'' to clarify that
the threat justifying a removal could consist of facts and
circumstances ``arising from'' the sexual harassment allegations (and
``sexual harassment'' is a defined term, under Sec. 106.30). For
example, if a respondent threatens physical violence against the
complainant in response to the complainant's allegations that the
respondent verbally sexually harassed the complainant, the immediate
threat to the complainant's physical safety posed by the respondent may
``arise from'' the sexual harassment allegations. As a further example,
if a respondent reacts to being accused of sexual harassment by
threatening physical self-harm, an immediate threat to the respondent's
physical safety may ``arise from'' the allegations of sexual harassment
and could justify an emergency removal. The ``arising from'' revision
also clarifies that recipients do not need to rely on, or meet the
requirements of, Sec. 106.44(c) to address emergency situations that
do not arise from sexual harassment allegations under Title IX (for
example, where a student has brought a weapon to school unrelated to
any sexual harassment allegations).
We are persuaded by commenters that Sec. 106.44(c) should be
clarified. The final regulations revise this provision to state that
the risk posed by the respondent must be to the ``physical'' health or
safety, of ``any student or other individual,'' arising from the
allegations of sexual harassment. These revisions help ensure that this
provision applies to genuine emergencies involving the physical health
or safety of one or more individuals (including the respondent,
complainant, or any other individual) and not only multiple students or
employees. We agree with commenters who asserted that adding the word
``physical'' before ``health or safety'' will help ensure that the
emergency removal provision is not used inappropriately to prematurely
punish respondents by relying on a person's mental or emotional
``health or safety'' to justify an emergency removal, as the emotional
and mental well-being of complainants may be addressed by recipients
via supportive measures as defined in Sec. 106.30. The revision to
Sec. 106.44(c) adding the word ``physical'' before ``health and
safety'' and changing ``students or employees'' to ``any student or
other individual'' also addresses commenters' concerns that the
proposed rules were not specific enough about what kind of threat
justifies an emergency removal; the latter revision clarifies that the
threat might be to the physical health or safety of one or more
persons, including the complainant, the respondent themselves, or any
other individual. We decline to remove ``health'' from the ``physical
health or safety'' phrase in this provision because an emergency
situation could arise from a threat to the physical health, or the
physical safety, of a person, and because ``health or safety'' is a
relatively recognized term used to describe emergency
circumstances.\959\
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\959\ E.g., 20 U.S.C. 1232g(b)(1)(I) (allowing disclosure,
without prior written consent, of personally identifiable
information from a student's education records ``subject to
regulations of the Secretary, in connection with an emergency,
appropriate persons if the knowledge of such information is
necessary to protect the health or safety of the student or other
persons''); 34 CFR 99.31(a)(10) and 34 CFR 99.36 (regulations
implementing FERPA).
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We decline to add further bases that could justify an emergency
removal under Sec. 106.44(c). We recognize the importance of the need
to restore or preserve equal access to education, but disagree that it
should be a justification for emergency removal; supportive measures
are intended to address restoration and preservation of equal
educational access, while Sec. 106.44(c) is intended to apply to
genuine emergencies that justify essentially punishing a respondent (by
separating the respondent from educational opportunities and benefits)
arising out of sexual harassment allegations without having fairly,
reliably determined whether the respondent is responsible for the
alleged sexual harassment. As explained above, we have revised Sec.
106.44(c) to apply only where the immediate threat to a person's
physical health or safety arises from the allegations of sexual
harassment; this clarifies that where a respondent poses a threat of
illegal conduct (perhaps not constituting a threat to physical health
or safety) that does not arise from the sexual harassment allegations,
this provision does not apply. Nothing in these final regulations
precludes a recipient from addressing a respondent's commission of
illegal conduct under the recipient's own code of conduct, or pursuant
to other laws, where such illegal conduct does not constitute sexual
harassment as defined in Sec. 106.30 or is not ``arising from the
sexual harassment allegations.'' We disagree that a recipient's
assessment that a respondent poses a threat of obstructing the sexual
harassment investigation, or destroying relevant evidence, justifies an
emergency removal under this provision, because this provision is
intended to ensure that recipients have authority and discretion to
address health or safety emergencies arising out of sexual harassment
allegations, not to address all forms of misconduct that a respondent
might commit during a grievance process.
The Department appreciates commenters' concerns that State or local
law may present other considerations or impose other requirements
before an emergency removal can occur. To the extent that other
applicable laws establish additional relevant standards for emergency
removals, recipients
[[Page 30226]]
should also heed such standards. To the greatest degree possible, State
and local law ought to be reconciled with the final regulations, but to
the extent there is a direct conflict, the final regulations
prevail.\960\ While commenters correctly note that a ``full hearing''
is not a constitutional due process requirement in all interim
suspension situations, Sec. 106.44(c) does not impose a requirement to
hold a ``full hearing'' and in fact, does not impose any pre-
deprivation due process requirements; the opportunity for a respondent
to challenge an emergency removal decision need only occur post-
deprivation. For reasons described in the ``Role of Due Process in the
Grievance Process'' section of this preamble, the Department has
determined that postsecondary institutions must hold live hearings to
reach determinations regarding responsibility for sexual harassment.
However, because Sec. 106.44(c) is intended to give recipients
authority to respond quickly to emergencies, and does not substitute
for a determination regarding the responsibility of the respondent for
the sexual harassment allegations at issue, recipients need only
provide respondents the basic features of due process (notice and
opportunity), and may do so after removal rather than before a removal
occurs. An emergency removal under Sec. 106.44(c) does not authorize a
recipient to impose an interim suspension or expulsion on a respondent
because the respondent has been accused of sexual harassment. Rather,
this provision authorizes a recipient to remove a respondent from the
recipient's education program or activity (whether or not the recipient
labels such a removal as an interim suspension or expulsion, or uses
any different label to describe the removal) when an individualized
safety and risk analysis determines that an imminent threat to the
physical health or safety of any person, arising from sexual harassment
allegations, justifies removal.
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\960\ See discussion under the ``Section 106.6(h) Preemptive
Effect'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble; see also discussion under
the ``Spending Clause'' subsection of the ``Miscellaneous'' section
of this preamble.
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Section 106.44(c) expressly acknowledges that recipients may be
obligated under applicable disability laws to conduct emergency
removals differently with respect to individuals with disabilities, and
these final regulations do not alter a recipient's obligation to adhere
to the IDEA, Section 504, or the ADA. Due to a recipient's obligations
under applicable State laws or disability laws, uniformity with respect
to how a recipient addresses all cases involving immediate threats to
physical health and safety may not be possible. However, the Department
believes that Sec. 106.44(c) appropriately balances the need for
schools to remove a respondent posing an immediate threat to the
physical health or safety of any person, with the need to ensure that
such an ability is not used inappropriately, for instance to bypass the
prohibition in Sec. 106.44(a) and Sec. 106.45(b)(1)(i) against
imposition of disciplinary sanctions or other actions that are not
supportive measures against a respondent without first following the
Sec. 106.45 grievance process. The Department does not believe that a
lower threshold for an emergency removal appropriately balances these
interests, even if this means that emergency removals arising from
allegations of sexual harassment must meet a higher standard than when
a threat arises from conduct allegations unrelated to Title IX sexual
harassment. In response to commenters' reasonable concerns about the
potential for confusion, we have added the phrase ``arising from the
allegations of sexual harassment'' (and ``sexual harassment'' is a
defined term under Sec. 106.30) into this provision to clarify that
this emergency removal provision only governs situations that arise
under Title IX, and not under State or other laws that might apply to
other emergency situations.
The Department does not see a need to add language stating that the
emergency removal must be periodically reviewed. Emergency removal is
not a substitute for the Sec. 106.45 grievance process, and Sec.
106.45(b)(1)(v) requires reasonably prompt time frames for that
grievance process. We acknowledge that a recipient could remove a
respondent under Sec. 106.44(c) without a formal complaint having
triggered the Sec. 106.45 grievance process; in such situations, the
requirements in Sec. 106.44(c) giving the respondent notice and
opportunity to be heard post-removal suffice to protect a respondent
from a removal without a fair process for challenging that outcome, and
the Department does not believe it is necessary to require periodic
review of the removal decision. We decline to impose layers of
complexity onto the emergency removal process, leaving procedures in
recipients' discretion; in many cases, recipients will develop a ``safe
exit plan'' as part of implementing an emergency removal, and
accommodate students who have been removed on an emergency basis with
alternative means to continue academic coursework during a removal
period or provide for a respondent to re-take classes upon a return
from an emergency removal, or secure personal property left on a
recipient's campus when a respondent is removed. We disagree that a
recipient's failure to refusal to take any of the foregoing steps
necessarily constitutes sex discrimination under Title IX, although a
recipient would violate Title IX by, for example, applying different
policies to female respondents than to male respondents removed on an
emergency basis. Nothing in the final regulations prevents students who
have been removed from asserting rights under State law or contract
against the recipient arising from a removal under this provision.
We decline to require an individualized safety and risk analysis
upon every reported sexual assault, because the Sec. 106.45 grievance
process is designed to bring all relevant evidence concerning sexual
harassment allegations to the decision-maker's attention so that a
determination regarding responsibility is reached fairly and reliably.
A recipient is obligated under Sec. 106.44(a) to provide a complainant
with a non-deliberately indifferent response to a sexual assault
report, which includes offering supportive measures designed to protect
the complainant's safety, and if a recipient does not provide a
complainant with supportive measures, then the recipient must document
the reasons why such a response was not clearly unreasonable in light
of the known circumstances pursuant to Sec. 106.45(b)(10)(ii).
Emergency removals under Sec. 106.44(c) remain an option for
recipients to respond to situations where an individualized safety and
risk analysis determines that a respondent poses an immediate threat to
health or safety.
The Department appreciates commenters' assertions that Sec.
106.44(c) should provide more due process protections, similar to those
applied in professional licensing board cases or under Federal laws
that apply to schools funded by the Bureau of Indian Affairs; however,
we believe that Sec. 106.44(c) appropriately balances a recipient's
need to protect individuals from emergency threats, with providing
adequate due process to the respondent under such emergency
circumstances. Notice and an opportunity to be heard constitute the
fundamental features of procedural due process, and the Department does
not wish to prescribe specific procedures that a recipient must apply
in emergency situations. Accordingly, the Department does not
[[Page 30227]]
wish to adopt the same due process protections that commenters asserted
are applied in professional licensing revocation proceedings, or that
are provided to Native American students in schools funded by the
Bureau of Indian Affairs. The Department acknowledges that schools
receiving funding from the Bureau of Indian Affairs must provide even
greater due process protections than what these final regulations
require, but these greater due process protections do not conflict with
these final regulations. These final regulations govern a variety of
recipients, including elementary and secondary schools and
postsecondary institutions, but also recipients that are not
educational institutions; for example, some libraries and museums are
recipients of Federal financial assistance operating education programs
or activities. These final regulations provide the appropriate amount
of due process for a wide variety of recipients of Federal financial
assistance with respect to a recipient's response to emergency
situations.
As discussed in the ``Clery Act'' subsection of the
``Miscellaneous'' section of this preamble, postsecondary institutions
subject to these Title IX regulations may also be subject to the Clery
Act. We decline to state in Sec. 106.44(c) that recipients must also
comply with the Clery Act because we do not wish to create confusion
about whether Sec. 106.44(c) applies only to postsecondary
institutions (because the Clery Act does not apply to elementary and
secondary schools). We decline to require recipients to notify
authorities, provide safety interventions, or annually report the
number of emergency removals conducted under Sec. 106.44(c), because
we do not wish to prescribe requirements on recipients beyond what we
have determined is necessary to fulfill the purpose of this provision:
Granting recipients authority and discretion to appropriately respond
to emergency situations arising from sexual harassment allegations.
Nothing in these final regulations precludes a recipient from notifying
authorities, providing safety interventions, or reporting the number of
emergency removals, to comply with other laws requiring such steps or
based on a recipient's desire to take such steps. For similar reasons,
we decline to require recipients to adopt ``best practices'' for
responding to threats. We note that these final regulations require
recipients to offer supportive measures to every complainant, and do
not preclude a recipient from providing resources to complainants or
respondents.
Changes: We have revised Sec. 106.44(c) so that a respondent
removed on an emergency basis must pose an immediate threat to the
``physical'' health or safety (adding the word ``physical'') of ``any
student or other individual'' (replacing the phrase ``students or
employees''). We have also revised the proposed language to clarify
that the justification for emergency removal must arise from
allegations of sexual harassment under Title IX.
Intersection With the IDEA, Section 504, and ADA
Comments: Some commenters applauded the ``saving clause'' in Sec.
106.44(c) acknowledging that the respondent may have rights under the
IDEA, Section 504, or the ADA. Several commenters asserted that Sec.
106.44(c) would create uncertainty regarding the interplay between
Title IX and relevant disabilities laws, which would further exacerbate
the uncertainty regarding involuntary removal of students who pose a
threat to themselves. Other commenters stated that the result of this
provision would likely be different handling of Title IX cases for
students with disabilities versus students without disabilities because
of the requirements of the IDEA, Section 504, and the ADA. Some
commenters believed this provision (and the proposed rules overall)
appear to give consideration to the rights and needs of respondents
with disabilities, without similar consideration for the rights of
complainants or witnesses with disabilities. Commenters asserted that
Sec. 106.44(c) is subject to problematic interpretation because by
expressly referencing the IDEA, Section 504, and the ADA this provision
might wrongly encourage schools to remove students with disabilities
because of implicit bias against students with disabilities, especially
students with intellectual disabilities.
One commenter suggested that Sec. 106.44(c) should track the
definition of ``direct threat'' used in the Equal Employment
Opportunity Commission's (EEOC) regulations, upheld by the Supreme
Court,\961\ and as outlined in ADA regulations \962\ because this would
give recipients and respondents a clearer standard and reduce the
chances that removal decisions will be based on generalizations,
ignorance, fear, patronizing attitudes, or stereotypes regarding
individuals with disabilities.
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\961\ Commenters cited: Chevron U.S.A. Inc. v. Echazabal, 536
U.S. 73 (2002).
\962\ Commenters cited: 28 CFR 35.139(b) (``In determining
whether an individual poses a direct threat to the health or safety
of others, a public entity must make an individualized assessment,
based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence, to ascertain:
the nature, duration, and severity of the risk; the probability that
the potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures or the provision
of auxiliary aids or services will mitigate the risk.'').
---------------------------------------------------------------------------
Some commenters argued that this provision conflicts with the IDEA,
Section 504, and the ADA, and that removals are not as simple as
conducting a mere risk assessment, because the IDEA governs emergency
removal of students in elementary school who are receiving special
education and related services.\963\ Commenters asserted that under the
IDEA, a school administrator cannot make a unilateral risk assessment,
and placement decisions cannot be made by an administrator alone;
rather, commenters argued, these decisions must be made by a team that
includes the parent and relevant members of the IEP (Individualized
Education Program) Team and if the conduct in question was a
manifestation of a disability, the recipient cannot make a unilateral
threat assessment and remove a child from school, absent extreme
circumstances. These commenters further argued that sometimes certain
behaviors are the result or manifestation of a disability, despite
being sexually offensive, e.g., a student with Tourette's syndrome
blurting out sexually offensive language. Commenters argued that under
disability laws schools cannot remove those students from school
without complying with the IDEA, Section 504, and the ADA. One
commenter recommended that Sec. 106.44(c) require, at a minimum,
training for Title IX administrators on the intersection among Title IX
and applicable disability laws. In the college setting, the commenter
further recommended that Title IX Coordinators not be permitted to
impose supportive measures that involve removal without feedback from
administrators from the institution's office of disability services,
provided that the student is registered with the pertinent office. If a
student has an Individualized Education Plan (IEP) in secondary school,
commenters recommended that the administration immediately call for a
team meeting to determine the next steps.
---------------------------------------------------------------------------
\963\ Commenters cited: Glen by & through Glen v. Charlotte-
Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918, 935 (W.D.N.C. 1995)
(``[W]here student poses an immediate threat, [the school] may
temporarily suspend up to 10 school days.'').
---------------------------------------------------------------------------
Other commenters asserted that any language under Sec. 106.44(c)
must make clear that the free appropriate public education (FAPE) to
which students
[[Page 30228]]
with disabilities are entitled must continue, even in circumstances
when emergency removal is deemed necessary under Title IX. Given this,
one commenter recommended that the language in Sec. 106.44(c) clarify
that this provision does not supersede rights under disability laws.
Some commenters, while expressing overall support for Sec.
106.44(c), requested additional guidance on the intersection of Title
IX, the IDEA, and the ADA, and how elementary and secondary schools
would implement Sec. 106.44(c). The commenters asserted that the final
regulations should be explicit that regardless of a student's IEP or
``504 plan'' under the IDEA or Section 504, the student is not allowed
to engage in threatening or harmful behavior and that this would be
similar to the response a campus might have to any other serious
violation, such as bringing a firearm to class. Commenters also argued
that the final regulations should clarify that separation of elementary
and secondary school students with disabilities from classroom settings
should be rare and only when done in compliance with the IDEA.
Commenters argued that recipients must be made aware that a student
with a disability does not have to be eligible for a free appropriate
public education (FAPE) in order for Sec. 106.44(c) to apply, and that
recipients must not be misled into thinking there are different
standards for elementary and secondary school and postsecondary
education environments when it comes to equal access to educational
opportunities.
Other commenters argued that Sec. 106.44(c) may violate compulsory
educational laws by removing elementary-age students from school on an
emergency basis. When an elementary school student is removed under
Sec. 106.44(c), commenters wondered whether the school is supposed to
have a designated site for housing or educating removed students during
the investigation.
Discussion: Section 106.44(c) states that this provision does not
modify any rights under the IDEA, Section 504, or the ADA. In the final
regulations, we removed reference to certain titles of the ADA and
refer instead to the ``Americans with Disabilities Act'' so that
application of any portion of the ADA requires a recipient to meet ADA
obligations while also complying with these final regulations. We
disagree that this provision will create ambiguity or otherwise
supersede rights that students have under these disability statutes.
Additionally, we do not believe that expressly acknowledging
recipients' obligations under disability laws incentivizes recipients
to remove respondents with disabilities; rather, reference in this
provision to those disability laws will help protect respondents from
emergency removals that do not also protect the respondents' rights
under applicable disability laws. With respect to implicit bias against
students with disabilities, recipients must be careful to ensure that
all emergency removal proceedings are impartial, without bias or
conflicts of interest \964\ and the final regulations do not preclude a
recipient from providing training to employees, including Title IX
personnel, regarding a recipient's obligations under both Title IX and
applicable disability laws. Any different treatment between students
without disabilities and students with disabilities with respect to
emergency removals, may occur due to a recipient's need to comply with
the IDEA, Section 504, the ADA, or other disability laws, but would not
be permissible due to bias or stereotypes against individuals with
disabilities.
---------------------------------------------------------------------------
\964\ Section 106.45(b)(1)(iii) requires all Title IX
Coordinators (and investigators, decision-makers, and persons who
facilitate informal resolution processes) to be free from conflicts
of interest or bias against complainants and respondents generally
or against an individual complainant or respondent, and requires
training for such personnel that includes (among other things) how
to serve impartially. A ``respondent'' under Sec. 106.30 means any
individual who has been reported to be the perpetrator of conduct
that could constitute sexual harassment; thus, a Title IX
Coordinator interacting with a respondent undergoing an emergency
removal must serve impartially, without conflict of interest or
bias.
---------------------------------------------------------------------------
As explained in the ``Directed Question 5: Individuals with
Disabilities'' subsection of the ``Directed Questions'' section of this
preamble, recipients have an obligation to comply with applicable
disability laws with respect to complainants as well as respondents
(and any other individual involved in a Title IX matter, such as a
witness), and the reference to disability laws in Sec. 106.44(c) does
not obviate recipients' responsibilities to comply with disability laws
with respect to other applications of these final regulations.
The Department appreciates commenters' suggestion to mirror the
``direct threat'' language utilized in ADA regulations; however, we
have instead revised Sec. 106.44(c) to refer to the physical health or
safety of ``any student or other individual'' because this language
better aligns this provision with the FERPA health and safety emergency
exception, and avoids the confusion caused by the ``direct threat''
language under ADA regulations because those regulations refer to a
``direct threat to the health or safety of others'' \965\ which does
not clearly encompass a threat to the respondent themselves (e.g.,
where a respondent threatens self-harm). By revising Sec. 106.44(c) to
refer to a threat to the physical health or safety ``of any student or
other individual'' this provision does encompass a respondent's threat
of self-harm (when the threat arises from the allegations of sexual
harassment), and is aligned with the language used in FERPA's health or
safety exception.\966\ We note that recipients still need to comply
with applicable disability laws, including the ADA, in making emergency
removal decisions.
---------------------------------------------------------------------------
\965\ 28 CFR 35.139(b) (``In determining whether an individual
poses a direct threat to the health or safety of others, a public
entity must make an individualized assessment, based on reasonable
judgment that relies on current medical knowledge or on the best
available objective evidence, to ascertain: The nature, duration,
and severity of the risk; the probability that the potential injury
will actually occur; and whether reasonable modifications of
policies, practices, or procedures or the provision of auxiliary
aids or services will mitigate the risk.'') (emphasis added).
\966\ E.g., 20 U.S.C. 1232g(b)(1)(I) (allowing disclosure,
without prior written consent, of personally identifiable
information from a student's education records ``subject to
regulations of the Secretary, in connection with an emergency,
appropriate persons if the knowledge of such information is
necessary to protect the health or safety of the student or other
persons''); see also regulations implementing FERPA, 34 CFR
99.31(a)(10) and 99.36.
---------------------------------------------------------------------------
The Department appreciates commenters' varied concerns that
complying with these final regulations, and with disability laws, may
pose challenges for recipients, including specific challenges for
elementary and secondary schools, and postsecondary institutions,
because of the intersection among the IDEA, Section 504, the ADA, and
how to conduct an emergency removal under these final regulations under
Title IX. The Department will offer technical assistance to recipients
regarding compliance with laws under the Department's enforcement
authority. However, the Department does not believe that recipients'
obligations under multiple civil rights laws requires changing the
emergency removal provision in Sec. 106.44(c) because this is an
important provision to ensure that recipients have flexibility to
balance the need to address emergency situations with fair treatment of
a respondent who has not yet been proved responsible for sexual
harassment. The Department does not believe that applicable disability
laws, or other State laws, render a recipient unable to comply with all
relevant legal obligations. For instance, with respect to compulsory
education laws, nothing in Sec. 106.44(c) relieves a recipient from
complying
[[Page 30229]]
with State laws requiring that students under a certain age receive
government-provided education services. As a further example, nothing
in Sec. 106.44(c) prevents a recipient from involving a student's IEP
team before making an emergency removal decision, and Sec. 106.44(c)
does not require a recipient to remove a respondent where the recipient
has determined that the threat posed by the respondent, arising from
the sexual harassment allegations, is a manifestation of a disability
such that the recipient's discretion to remove the respondent is
constrained by IDEA requirements.
Changes: We have replaced the phrase ``students or employees'' with
the phrase ``any student or other individual'' in Sec. 106.44(c) and
removed specification of certain titles of the ADA, instead referencing
the whole of the ADA.
Post-Removal Challenges
Comments: Some commenters supported Sec. 106.44(c) giving
respondents notice and opportunity to challenge the removal immediately
after the removal, because during a removal a respondent might lose a
significant amount of instructional time while waiting for a grievance
proceeding to conclude, and being out of school can harm the academic
success and emotional health of the removed student. Other commenters
asserted that respondents should not be excluded from a recipient's
education program or activity until conclusion of a grievance process,
and a post-removal challenge after the fact is insufficient to assure
due process for respondents, especially because Sec. 106.44(c) does
not specify requirements for the time frame or procedures used for a
challenging the removal decision.
Some commenters argued that the ability of a removed respondent to
challenge the removal would pose an unnecessary increased risk to the
safety of the community, especially because Sec. 106.44(c) already
requires the recipient to determine the removal was justified by an
individualized safety and risk analysis. Commenters argued that a
school's emergency removal decision should stand until a threat
assessment team has met and given a recommendation to affirm or
overrule the decision.
Some commenters asserted that Sec. 106.44(c) is ambiguous about
the right to a post-removal challenge and argued that the failure to
provide more clarity is problematic because it is unclear if the
``immediate'' challenge must occur minutes, hours, one day, or several
days after the removal. Commenters argued that a plain language
interpretation of ``immediately'' may require the challenge to occur
minutes after the suspension, but this could jeopardize the safety of
the complainant and the community, because the very point of an interim
suspension is to remove a known risk from campus. Other commenters
argued that requiring an ``immediate'' post-removal challenge could
undermine the respondent's due process rights, because the respondent
might not be physically present on campus when the interim suspension
(e.g., removal) is issued. Some commenters argued that there should be
a delay between when the removal occurred and when the opportunity to
challenge occurs, because students and employees are often afraid of
providing information to college administrations due to legitimate,
reasonable fear for their own safety. Commenters requested that this
provision be modified to give the respondent a challenge opportunity
``as soon as reasonably practicable'' rather than ``immediately.''
Commenters asked whether providing a challenge opportunity
``immediately'' must, or could, be the same as the ``prompt'' time
frames required under Sec. 106.45.
Discussion: The Department appreciates commenters' support of the
post-removal challenge opportunity provided in Sec. 106.44(c). The
Department disagrees with commenters who suggested that no challenge to
removals ought to be possible, and believes that Sec. 106.44(c)
appropriately balances the interests involved in emergency situations.
We 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 opportunity to be heard while leaving recipients flexibility
to use procedures that a recipient deems most appropriate.\967\ These
final regulations aim to improve the perception and reality of the
fairness and accuracy by which a recipient resolves allegations of
sexual harassment, and therefore the Sec. 106.45 grievance process
prescribes a consistent framework and specific procedures for resolving
formal complaints of sexual harassment. By contrast, Sec. 106.44(c) is
not designed to resolve the underlying allegations of sexual harassment
against a respondent, but rather to ensure that recipients have the
authority and discretion to appropriately handle emergency situations
that may arise from allegations of sexual harassment. As discussed
above, the final regulations revise the language in Sec. 106.44(c) to
add the phrase ``arising from the allegations of sexual harassment,''
which clarifies that the facts or circumstances that justify a removal
might not be the same as the sexual harassment allegations but might
``arise from'' those allegations.
---------------------------------------------------------------------------
\967\ E.g., Goss v. Lopez, 419 U.S. 565, 582-83 (1975)
(``Students whose presence poses a continuing danger to persons or
property or an ongoing threat of disrupting the academic process may
be immediately removed from school. In such cases, the necessary
notice and rudimentary hearing should follow as soon as
practicable'').
---------------------------------------------------------------------------
The Department disagrees that a post-removal challenge is
unnecessary because the individualized safety and risk analysis already
determined that removal was justified; the purpose of a true emergency
removal is to authorize a recipient to respond to immediate threats
even without providing the respondent with pre-deprivation notice and
opportunity to be heard because this permits a recipient to protect the
one or more persons whose physical health or safety may be in jeopardy.
The respondent's first opportunity to challenge the removal (e.g., by
presenting the recipient with facts that might contradict the existence
of an immediate threat to physical health or safety) might be after the
recipient already reached its determination that removal is justified,
and due process principles (whether constitutional due process of law,
or fundamental fairness) require that the respondent be given notice
and opportunity to be heard.\968\ Section 106.44(c) does not preclude a
recipient from convening a threat assessment team to review the
recipient's emergency removal determination, but Sec. 106.44(c) still
requires the recipient to give the respondent post-removal notice and
opportunity to challenge the removal decision.
---------------------------------------------------------------------------
\968\ Goss, 419 U.S. at 580 (``At the very minimum, therefore,
students facing suspension and the consequent interference with a
protected property interest must be given some kind of notice and
afforded some kind of hearing.'').
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The Department expects the emergency removal process to be used in
genuine emergency situations, but when it is used, recipients must
provide an opportunity for a removed individual to challenge their
removal immediately after the removal. The term ``immediately'' will be
fact-specific, but is generally understood in the context of a legal
process as occurring without delay, as soon as possible, given the
circumstances. ``Immediately'' does not require a time frame of
``minutes'' because in the context of a legal proceeding the term
immediately is not generally understood to mean an absolute exclusion
of any time interval.
[[Page 30230]]
``Immediately'' does not imply the same time frame as the ``reasonably
prompt'' time frames that govern the grievance process under Sec.
106.45, because ``immediately'' suggests a more pressing, urgent time
frame than ``reasonable promptness.'' This is appropriate because Sec.
106.44(c) does not require a recipient to provide the respondent with
any pre-deprivation notice or opportunity to be heard, so requiring
post-deprivation due process protections ``immediately'' after the
deprivation ensures that a respondent's interest in access to education
is appropriately balanced against the recipient's interest in quickly
addressing an emergency situation posed by a respondent's risk to the
physical health or safety of any student or other individual. We
decline to require the post-removal notice and challenge to be given
``as soon as reasonably practicable'' instead of ``immediately''
because that would provide the respondent less adequate post-
deprivation due process protections.
Changes: None.
No Stated Time Limitation for the Emergency Removal
Comments: Some commenters viewed the absence of a time limitation
with respect to how long an emergency removal could be as a source of
harm to both respondents and complainants. Commenters asserted that,
given how long the grievance process could take, students and employees
removed from their education or employment until conclusion of the
grievance process could experience considerable negative consequences.
Commenters argued that the proposed rules should not encourage
emergency removal, particularly not when other, less severe measures
could be taken to ensure safety pending an investigation. Commenters
proposed limiting an emergency removal to seven days, during which time
an institution would determine in writing that an immediate threat to
health or safety exists, warranting the emergency action, and if no
such determination is reached, the respondent would be reinstated.
Discussion: The final regulations require schools to offer
supportive measures to complainants and permit recipients to offer
supportive measures to respondents. We decline to require emergency
removals in every situation where a formal complaint triggers a
grievance process. The grievance process is designed to conclude
promptly, and the issue of whether a respondent needs to be removed on
an emergency basis should not arise in most cases, since Sec.
106.44(c) applies only where emergency removal is justified by an
immediate threat to the physical health or safety of any student or
other individual. Revised Sec. 106.44(a), and revised Sec.
106.45(b)(1)(i), prohibit a recipient from imposing against a
respondent disciplinary sanctions or other actions that are not
supportive measures as defined in Sec. 106.30, without following the
Sec. 106.45 grievance process. Emergency removal under Sec. 106.44(c)
constitutes an exception to those prohibitions, and should not be
undertaken in every situation where sexual harassment has been alleged.
Rather, emergency removal is appropriate only when necessary to address
imminent threats to a person's physical health or safety arising from
the allegations of sexual harassment.
The Department declines to put any temporal limitation on the
length of a valid emergency removal, although nothing in the final
regulations precludes a recipient from periodically assessing whether
an immediate threat to physical health or safety is ongoing or has
dissipated.
Changes: None.
``Removal''
Comments: Commenters requested clarification in the following
regards: Would removing a respondent from a class, or changing the
respondent's class schedule, before a grievance process is completed
(or where no formal complaint has initiated a grievance process),
require a recipient to undertake emergency removal procedures? Under
Sec. 106.44(c) must a recipient remove a respondent from the entirety
of recipient's education program or activity, or may a recipient choose
to only remove the respondent to the extent the individual poses an
emergency in a specific setting, i.e., a certain class, student
organization, living space, athletic team, etc.?
Commenters argued that the Sec. 106.30 definition of supportive
measures and Sec. 106.44(c) regarding emergency removal could lead to
confusion among recipients about what steps they can take to protect a
complainant's safety and access to education prior to conclusion of a
grievance process, or where no formal complaint has initiated a
grievance process. One commenter suggested modifying this provision to
expressly permit partial exclusion from programs or activities by
adding the phrase ``or any part thereof.''
Commenters argued that Sec. 106.44(c) would make it too difficult
to remove a respondent before the completion of a disciplinary
proceeding absent an extreme emergency. Commenters suggested that the
Department should consider a more nuanced approach that provides
schools with a range of options, short of emergency removal, that are
proportionate to the alleged misconduct and meet the needs of the
victim. Commenters requested that Sec. 106.44(c) be revised to allow
an appropriate administrator (such as a dean of students), in
consultation with the Title IX Coordinator, discretion to determine the
appropriateness of an emergency removal based on a standard that is in
the best interest of the institution.
Some commenters argued that even where an emergency threat exists,
Sec. 106.44(c) does not provide a time frame in which the recipient
must make this emergency removal decision, leaving survivors vulnerable
to daily contact with a dangerous respondent. Commenters asserted that
recipients should be able to remove a respondent from a dorm or shared
classes before conclusion of a disciplinary proceeding, particularly
when it is clear that the survivor's education will be harmed
otherwise. Commenters asserted that 80 percent of rapes and sexual
assaults are committed by someone known to the victim,\969\ which means
that it is highly likely that the victim and perpetrator share a
dormitory, a class, or other aspect of the school environment and that
Sec. 106.44(c) (combined with the Sec. 106.30 definition of
``supportive measures'') leaves victims in continual contact with their
harasser, thereby prioritizing the education of accused harassers over
the education of survivors. Commenters argued that survivors should not
have to wait until the end of a grievance process to be protected from
seeing a perpetrator in class or on campus, and this provision would
pressure survivors to file formal complaints when many survivors do not
want a formal process for valid personal reasons, because a formal
process would be the only avenue for ensuring that a ``guilty''
respondent will be suspended or expelled. Commenters recommended adding
language to clarify that nothing shall prevent elementary and secondary
schools from implementing an ``alternate assignment'' during the
pendency of an investigation, provided that the same is otherwise
permitted by law.
---------------------------------------------------------------------------
\969\ Commenters cited: U.S. Dep't. of Justice, Office of
Justice Programs, Bureau of Justice Statistics, Special Report: Rape
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
---------------------------------------------------------------------------
One commenter suggested combining the emergency removal and
supportive
[[Page 30231]]
measures provisions into a single ``interim measures'' provision.
Discussion: The Department believes the Sec. 106.30 definition of
supportive measures, and Sec. 106.44(c) governing emergency removals,
in the context of the revised requirements in Sec. 106.44(a) and Sec.
106.45(b)(1)(i) (requiring recipients to offer supportive measures to
complainants while not imposing against respondents disciplinary
sanctions or other actions that are not ``supportive measures'')
provide a wide range and variety of options for a recipient to preserve
equal educational access, protect the safety of all parties, deter
sexual harassment, and respond to emergency situations.
Under Sec. 106.30, a supportive measure must not be punitive or
disciplinary, but may burden a respondent as long as the burden is not
unreasonable. As discussed in the ``Supportive Measures'' subsection of
the ``Section 106.30 Definitions'' section of this preamble, whether a
certain measure unreasonably burdens a respondent requires a fact-
specific inquiry. Changing a respondent's class schedule or changing a
respondent's housing or dining hall assignment may be a permissible
supportive measure depending on the circumstances. By contrast,
removing a respondent from the entirety of the recipient's education
programs and activities, or removing a respondent from one or more of
the recipient's education programs or activities (such as removal from
a team, club, or extracurricular activity), likely would constitute an
unreasonable burden on the respondent or be deemed disciplinary or
punitive, and therefore would not likely qualify as a supportive
measure. Until or unless the recipient has followed the Sec. 106.45
grievance process (at which point the recipient may impose any
disciplinary sanction or other punitive or adverse consequence of the
recipient's choice), removals of the respondent from the recipient's
education program or activity \970\ need to meet the standards for
emergency removals under Sec. 106.44(c).\971\ Supportive measures
provide one avenue for recipients to protect the safety of parties and
permissibly may affect and even burden the respondent, so long as the
burden is not unreasonable. Supportive measures may include, for
example, mutual or unilateral restrictions on contact between parties
or re-arranging class schedules or classroom seating assignments, so
complainants need not remain in constant or daily contact with a
respondent while an investigation is pending, or even where no
grievance process is pending.
---------------------------------------------------------------------------
\970\ As discussed in the ``Section 106.44(a) `education program
or activity' '' subsection of the ``Section 106.44 Recipient's
Response to Sexual Harassment, Generally'' section of this preamble,
the Title IX statute and existing regulations provide definitions of
``program or activity'' that apply to interpretation of a
recipient's ``education program or activity'' in these final
regulations, and we have clarified in Sec. 106.44(a) that for
purposes of responding to sexual harassment a recipient's education
program or activity includes circumstances over which the recipient
exercised substantial control. 20 U.S.C. 1687; 34 CFR 106.2(h); 34
CFR 106.2(i) (defining ``recipient''); 34 CFR 106.31(a) (referring
to ``any academic, extracurricular, research, occupational training,
or other education program or activity operated by a recipient which
receives Federal financial assistance'').
\971\ Cf. Sec. 106.44(d) (a non-student employee-respondent may
be placed on administrative leave (with or without pay) while a
Sec. 106.45 grievance process is pending, without needing to meet
the emergency removal standards in Sec. 106.44(c)).
---------------------------------------------------------------------------
Whether an elementary and secondary school recipient may implement
an ``alternate assignment'' during the pendency of an investigation (or
without a grievance process pending), in circumstances that do not
justify an emergency removal, when such action is otherwise permitted
by law, depends on whether the alternate assignment constitutes a
disciplinary or punitive action or unreasonably burdens the respondent
(in which case it would not qualify as a supportive measure as defined
in Sec. 106.30).\972\ Whether an action ``unreasonably burdens'' a
respondent is fact-specific, but should be evaluated in light of the
nature and purpose of the benefits, opportunities, programs and
activities, of the recipient in which the respondent is participating,
and the extent to which an action taken as a supportive measure would
result in the respondent forgoing benefits, opportunities, programs, or
activities in which the respondent has been participating. An alternate
assignment may, of course, be appropriate when an immediate threat
justifies an emergency removal of the respondent because under the
final regulations, emergency removal may justify total removal from the
recipient's education program or activity, so offering the respondent
alternate assignment is included within the potential scope of an
emergency removal. Under Sec. 106.44(a), the recipient must offer
supportive measures to the complainant, and if a particular action--
such as alternate assignment--does not, under specific circumstances,
meet the definition of a supportive measure, then the recipient must
carefully consider other individualized services, reasonably available,
designed to restore or preserve the complainant's equal educational
access and/or protect safety and deter sexual harassment, that the
recipient will offer to the complainant.
---------------------------------------------------------------------------
\972\ For discussion of alternate assignments when the
respondent is a non-student employee, see the ``Section 106.44(d)
Administrative Leave'' subsection of the ``Additional Rules
Governing Recipients' Responses to Sexual Harassment'' subsection of
the ``Section 106.44 Recipient's Response to Sexual Harassment,
Generally'' section of this preamble.
---------------------------------------------------------------------------
We do not believe that the final regulations incentivize
complainants to file formal complaints when they otherwise do not wish
to do so just to avoid contacting or communicating with a respondent,
because supportive measures permit a range of actions that are non-
punitive, non-disciplinary, and do not unreasonably burden a
respondent, such that a recipient often may implement supportive
measures that do meet a complainant's desire to avoid contact with the
respondent. For example, if a complainant and respondent are both
members of the same athletic team, a carefully crafted unilateral no-
contact order could restrict a respondent from communicating directly
with the complainant so that even when the parties practice on the same
field together or attend the same team functions together, the
respondent is not permitted to directly communicate with the
complainant. Further, the recipient may counsel the respondent about
the recipient's anti-sexual harassment policy and anti-retaliation
policy, and instruct the team coaches, trainers, and staff to monitor
the respondent, to help enforce the no-contact order and deter any
sexual harassment or retaliation by the respondent against the
complainant. Further, nothing in the final regulations, or in the
definition of supportive measures in Sec. 106.30, precludes a
recipient from altering the nature of supportive measures provided, if
circumstances change. For example, if the Title IX Coordinator
initially implements a supportive measure prohibiting the respondent
from directly communicating with the complainant, but the parties later
each independently decide to take the same lab class, the Title IX
Coordinator may, at the complainant's request, reevaluate the
circumstances and offer the complainant additional supportive measures,
such as requiring the professor teaching the lab class to ensure that
the complainant and respondent are not ``teamed up'' or assigned to sit
near each other or assigned as to be ``partners,'' during or as part of
the lab class.
Commenters correctly observe that the final regulations prohibit
suspending or
[[Page 30232]]
expelling a respondent without first following the Sec. 106.45
grievance process, or unless an emergency situation justices removal
from the recipient's education program or activity (which removal may,
or may not, be labeled a ``suspension'' or ``expulsion'' by the
recipient). We do not believe this constitutes unfairness to survivors,
or poses a threat to survivors' equal educational access, because there
are many actions that meet the definition of supportive measures that
may restore or preserve a complainant's equal access, protect a
complainant's safety, and/or deter sexual harassment without punishing
or unreasonably burdening a respondent. As discussed in the ``Section
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of the
``General Requirements for Sec. 106.45 Grievance Process'' subsection
of the ``Section 106.45 Recipient's Response to Formal Complaints''
section of this preamble, refraining from treating people accused of
wrongdoing as responsible for the wrongdoing prior to evidence proving
the person is responsible is a fundamental tenet of American justice.
These final regulations appropriately ensure that respondents are not
unfairly, prematurely treated as responsible before being proved
responsible, with certain reasonable exceptions: Emergency removals,
administrative leave for employees, and informal resolution of a formal
complaint that resolves the allegations without a full investigation
and adjudication but may result in consequences for a respondent
including suspension or expulsion. In this way, the final regulations
ensure that every complainant is offered supportive measures designed
to preserve their equal educational access and protect their safety
(even without any proof of the merits of the complainant's allegations)
consistent with due process protections and fundamental fairness. As an
example, a complainant understandably may desire as a supportive
measure the ability to avoid being in the same classroom with a
respondent, whether or not the complainant wants to file a formal
complaint. A school may conclude that transferring the respondent to a
different section of that class (e.g., that meets on a different day or
different time than the class section in which the complainant and
respondent are enrolled) is a reasonably available supportive measure
that preserves the complainant's equal access and protects the
complainant's safety or deters sexual harassment, while not
constituting an unreasonable burden on the respondent (because the
respondent is still able to take that same class and earn the same
credits toward graduation, for instance). If, on the other hand, that
class in which both parties are enrolled does not have alternative
sections that meet at different times, and precluding the respondent
from completing that class would delay the respondent's progression
toward graduation, then the school may determinate that requiring the
respondent to drop that class would constitute an unreasonable burden
on the respondent and would not quality as a supportive measure,
although granting the complainant an approved withdrawal from that
class with permission to take the class in the future, would of course
constitute a permissible supportive measure for the recipient to offer
the complainant. Alternatively in such a circumstance (where the
complainant, like the respondent, cannot withdraw from that class and
take it later without delaying progress toward graduation), the school
may offer the complainant as a supportive measure, for example, a one-
way no contact order that prohibits the respondent from communicating
with the complainant and assigns the respondent to sit across the
classroom from the complainant. As such an example shows, these final
regulations allow, and require, a recipient to carefully consider the
specific facts and circumstances unique to each situation to craft
supportive measures to help a complainant without prematurely
penalizing a respondent.
The Department does not believe it is necessary or appropriate to
require a time frame for when a recipient must undertake an emergency
removal, because the risk arising from the sexual harassment
allegations that may justify a removal may arise at any time; further,
Sec. 106.44(a) requires a recipient to respond ``promptly'' to sexual
harassment, and if an emergency removal is a necessary part of a
recipient's non-deliberately indifferent response then such a response
must be prompt. We reiterate that emergency removal is not about
reaching factual conclusions about whether the respondent is
responsible for the underlying sexual harassment allegations. Emergency
removal is about determining whether an immediate threat arising out of
the sexual harassment allegations justifies removal of the respondent.
We appreciate the opportunity to clarify that, where the standards
for emergency removal are met under Sec. 106.44(c), 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. We decline to add
the phrase ``or any part thereof'' to this provision because a ``part
of'' a program may not be readily understood, and we believe the
authority to exclude entirely includes the lesser authority to exclude
partially.
Section 106.44(a) and Sec. 106.45(b)(1)(i) forbid a recipient from
imposing disciplinary sanctions (or other actions that are not
supportive measures) on a respondent without first following a
grievance process that complies with Sec. 106.45. We reiterate that a
Sec. 106.44(c) emergency removal may be appropriate whether or not a
grievance process is underway, and that the purpose of an emergency
removal is to protect the physical health or safety of any student or
other individual to whom the respondent poses an immediate threat,
arising from allegations of sexual harassment, not to impose an interim
suspension or expulsion on a respondent, or penalize a respondent by
suspending the respondent from, for instance, playing on a sports team
or holding a student government position, while a grievance process is
pending. The final regulations respect complainants' autonomy and
understand that not every complainant wishes to participate in a
grievance process, but a complainant's choice not to file a formal
complaint or not to participate in a grievance process does not permit
a recipient to bypass a grievance process and suspend or expel (or
otherwise discipline, penalize, or unreasonably burden) a respondent
accused of sexual harassment. An emergency removal under Sec.
106.44(c) separates a respondent from educational opportunities and
benefits, and is permissible only when the high threshold of an
immediate threat to a person's physical health or safety justifies the
removal.
Because the purposes of, and conditions for, ``supportive
measures'' as defined in Sec. 106.30 differ from the purposes of, and
conditions for, an emergency removal under Sec. 106.44(c), we decline
to combine these provisions. Both provisions, and the final regulations
as a whole, do not prioritize the educational needs of a respondent
over a complainant, or vice versa, but aim to ensure that complainants
receive a prompt, supportive response from a recipient, respondents are
treated fairly, and recipients retain latitude to address emergency
situations that may arise.
Changes: None.
[[Page 30233]]
``Individualized Safety and Risk Analysis''
Comments: Many commenters argued that the lack of guidance in Sec.
106.44(c) on the requirements for conducting the ``individualized
safety and risk analysis'' is confusing, and should be better defined
because it could lead to inconsistent results from school to school,
county to county, and State to State. Some commenters expressed overall
support for this provision, but argued that the power of removal should
not be wielded without careful consideration, and requested clarity
about who would undertake the risk analysis (e.g., an internal or
external individual on behalf of a recipient). Other commenters stated
that Sec. 106.44(c) should list factors to consider in the required
safety and risk analysis including: whether violence was alleged (which
commenters asserted is rare in cases involving alleged incapacitation),
how long the complainant took to file a complaint, whether the
complainant has reported the allegations to the police, and whether
there are other, less restrictive measures that could be taken.
Commenters argued that the risk assessment requirement may prevent the
removal of respondents who are in fact dangerous because context and
other nuances may not be accounted for in the assessment. One commenter
stated that the Sec. 106.44(c) safety and risk analysis requirements
are ``good, but sometimes not realistic'' because threat assessment
teams do not meet daily, and it is sometimes necessary to decide a
removal in a matter of hours. Other commenters stated some recipients
have already incorporated this sort of threat assessment into their
decision matrix because postsecondary institutions are obligated to
take reasonable steps to address dangers or threats to their students.
Some commenters were concerned that institutions lack sufficient
resources to properly conduct the required safety and risk analysis,
that institutions lack the proper tools to conduct assessments
calibrated to the age and developmental issues of the respondent, and
that institutions lack the training and knowledge to properly implement
such assessments. Commenters asserted that this provision would require
institutions to train employees to conduct an individualized safety and
risk analysis before removing students on an emergency basis, but that
such assessments are rarely within the capacity or expertise of a
single employee, and thus may require a committee or task force
dedicated for this purpose.
Discussion: Recipients are entitled to use Sec. 106.44(c) to
remove a respondent on an emergency basis, only where there is an
immediate threat to the physical health or safety of any student or
other individual. The ``individualized safety or risk analysis''
requirement ensures that the recipient should not remove a respondent
from the recipient's education program or activity pursuant to Sec.
106.44(c) unless there is more than a generalized, hypothetical, or
speculative belief that the respondent may pose a risk to someone's
physical health or safety. The Department believes that the immediate
threat to physical health or safety threshold for justifying a removal
sufficiently restricts Sec. 106.44(c) to permitting only emergency
removals and believes that further describing what might constitute an
emergency would undermine the purpose of this provision, which is to
set a high threshold for emergency removal yet ensure that the
provision will apply to the variety of circumstances that could present
such an emergency. The Department also believes that the final
regulations adequately protect respondents, since in cases where the
recipient removes a respondent, the recipient must follow appropriate
procedures, including bearing the burden of demonstrating that the
removal meets the threshold specified by the final regulations, based
on a factual, individualized safety and risk analysis. We understand
commenters' concerns that the individualized, fact-based nature of an
emergency removal assessment may lead to different results from school
to school or State to State, but different results may be reasonable
based on the unique circumstances presented in individual situations.
Because the safety and risk analysis under Sec. 106.44(c) must be
``individualized,'' the analysis cannot be based on general assumptions
about sex, or research that purports to profile characteristics of sex
offense perpetrators, or statistical data about the frequency or
infrequency of false or unfounded sexual misconduct allegations. The
safety and risk analysis must be individualized with respect to the
particular respondent and must examine the circumstances ``arising from
the allegations of sexual harassment'' giving rise to an immediate
threat to a person's physical health or safety. These circumstances may
include factors such as whether violence was allegedly involved in the
conduct constituting sexual harassment, but could also include
circumstances that ``arise from'' the allegations yet do not constitute
the alleged conduct itself; for example, a respondent could pose an
immediate threat of physical self-harm in reaction to being accused of
sexual harassment. For a respondent to be removed on an emergency
basis, the school must determine that an immediate threat exists, and
that the threat justifies removal. Section 106.44(c) does not limit the
factors that a recipient may consider in reaching that determination.
We appreciate commenters' concerns that performing safety and risk
analyses may require a recipient to expend resources or train
employees, but without an individualized safety and risk analysis a
recipient's decision to remove a respondent might be arbitrary, and
would fail to apprise the respondent of the basis for the recipient's
removal decision so that the respondent has an opportunity to challenge
the decision. Procedural due process of law and fundamental fairness
require that a respondent deprived of an educational benefit be given
notice and opportunity to contest the deprivation; \973\ without
knowing the individualized reasons why a recipient determined that the
respondent posed a threat to someone's physical health or safety, the
respondent cannot assess a basis for challenging the recipient's
removal decision. Recipients may choose to provide specialized training
to employees or convene interdisciplinary threat assessment teams, or
be required to take such actions under other laws, and Sec. 106.44(c)
leaves recipients flexibility to decide how to conduct an
individualized safety and risk analysis, as well as who will conduct
the analysis.
---------------------------------------------------------------------------
\973\ See the ``Role of Due Process in the Grievance Process''
section of this preamble.
---------------------------------------------------------------------------
Changes: None.
``Provides the Respondent With Notice and an Opportunity To Challenge
the Decision Immediately Following the Removal''
Comments: One commenter stated that during any emergency removal
hearing, schools should be required to share all available evidence
with the respondent, permit that person an opportunity to be heard, and
allow the respondent's advisor to cross-examine any witnesses.
According to the commenter, if these full procedural rights are not
extended, this provision would create a loophole that allows emergency
measures to effectively replace a full grievance process. Commenters
also argued that a recipient's emergency removal decisions
[[Page 30234]]
would often be hastily made, and that recipients would ignore
requirements that a removed student be given the opportunity to review
or challenge the decision made by the recipient. Commenters argued that
Sec. 106.44(c) should include express language safeguarding students
against abusive practices during the challenge procedure. One commenter
suggested adding the word ``meaningful'' so the respondent would have
``a meaningful opportunity'' to challenge the removal decision,
asserting that certain institutions of higher education in California
have not consistently given respondents meaningful opportunities to
``make their case.'' While supportive of Sec. 106.44(c), one commenter
suggested modifying this provision to require the recipient to send the
respondent written notice of the specific facts that supported the
recipient's decision to remove the student, so the respondent can
meaningfully challenge the removal decision.
Some commenters asserted that if the respondent has a right to
challenge the emergency removal, the recipient must offer an equitable
opportunity for the complainant to contest an overturned removal or
participate in the respondent's challenge process. Other commenters
asked whether Sec. 106.44(c) requires, or allows, a recipient to
notify the complainant that a respondent has been removed under this
provision, that a respondent is challenging a removal decision, or that
a removal decision has been overturned by the recipient after a
respondent's challenge.
Commenters argued that Sec. 106.44(c) would also effectively
mandate that an institution's employees must be trained to conduct
hearings or other undefined post-removal procedures in the event that a
respondent exercises the right to challenge the emergency removal.
Commenters argued that this burden likely would require a dedicated
officer or committee to carry out procedural obligations that did not
previously exist, and these burdens were not contemplated at the time
of the recipient's acceptance of the Federal funding. Commenters argued
that Sec. 106.44(c) would provide rights to at-will employees that are
otherwise unavailable, restricting employment actions that are normally
within the discretion of an employer.
Commenters requested clarification about the procedures for
challenging a removal decision, such as: Whether a respondent's
opportunity challenge the emergency removal means the recipient must,
or may, use processes under Sec. 106.45 to meet its obligations,
including whether evidence must be gathered, witnesses must be
interviewed, or a live hearing with cross-examination must be held;
whether the recipient, or respondent, will bear the burden of proof
that the removal decision was correct or incorrect; whether the
recipient must, or may, involve the complainant in the challenge
procedure; whether the recipient must, or may, use the investigators
and decision-makers that have been trained pursuant to Sec. 106.45 to
conduct the post-removal challenge procedure; and whether the
determinations about an emergency removal must, or may, influence a
determination regarding responsibility during a grievance process under
Sec. 106.45.
Discussion: The Department disagrees that Sec. 106.44(c) poses a
possible loophole through which recipients may bypass giving
respondents the due process protections in the Sec. 106.45 grievance
process. The threshold for an emergency removal under Sec. 106.44(c)
is adequately high to prevent recipients from using emergency removal
as a pretense for imposing interim suspensions and expulsions. We do
not believe it is necessary to revise Sec. 106.44(c) to prevent
recipients from imposing ``abusive'' procedures on respondents;
recipients will be held accountable for reaching removal decisions
under the standards of Sec. 106.44(c), giving recipients adequate
incentive to give respondents the immediate notice and challenge
opportunity following a removal decision. We do not believe that
recipients will make emergency removal decisions ``hastily,'' and a
respondent who believes a recipient has violated these final
regulations may file a complaint with OCR.
The Department does not want to prescribe more than minimal
requirements on recipients for purposes of responding to emergency
situations. We decline to require written notice to the respondent
because minimal due process requires some kind of notice, and
compliance with a notice requirement suffices for a recipient's
handling of an emergency situation.\974\ We decline to add the modifier
``meaningful'' before ``opportunity'' because the basic due process
requirement of an opportunity to be heard entails an opportunity that
is appropriate under the circumstances, which ensures a meaningful
opportunity.\975\ While a recipient has discretion (subject to FERPA
and other laws restricting the nonconsensual disclosure of personally
identifiable information from education records) to notify the
complainant of removal decisions regarding a respondent, or post-
removal challenges by a respondent, we do not require the complainant
to receive notice under Sec. 106.44(c) because not every emergency
removal directly relates to the complainant. As discussed above,
circumstances that justify removal must be ``arising from the
allegations of sexual harassment'' yet may consist of a threat to the
physical health or safety of a person other than the complainant (for
example, where the respondent has threatened self-harm).\976\
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\974\ E.g., Goss, 419 U.S. at 578-79 (holding that in the public
school context ``the interpretation and application of the Due
Process Clause are intensely practical matters'' that require at a
minimum notice and ``opportunity for hearing appropriate to the
nature of the case'') (internal quotation marks and citations
omitted).
\975\ Id.
\976\ As discussed in the ``Section 106.6(e) FERPA'' subsection
of the ``Clarifying Amendments to Existing Regulations'' section of
this preamble, the complainant has a right to know the nature of any
disciplinary sanctions imposed on a respondent after the recipient
has found the respondent to be responsible for sexual harassment
alleged by the complainant, because the disciplinary sanctions are
directly related to the allegations made by the complainant. By
contrast, emergency removal of a respondent does not involve a
recipient's determination that the respondent committed sexual
harassment as alleged by the complainant, and information about the
emergency removal is not necessarily directly related to the
complainant. Thus, FERPA (or other privacy laws) may restrict a
recipient's discretion to disclose information relating to the
emergency removal.
---------------------------------------------------------------------------
The Department disagrees that Sec. 106.44(c) requires a recipient
to go through excessively burdensome procedures prior to removing a
respondent on an emergency basis. The seriousness of the consequence of
a recipient's decision to removal of a student or employee, without a
hearing beforehand, naturally requires the school to meet a high
threshold (i.e., an individualized safety and risk assessment shows
that the respondent poses an immediate threat to a person's physical
health or safety justifying removal). At the same time, Sec. 106.44(c)
leaves recipients wide latitude to select the procedures for giving
notice and opportunity to challenge a removal.
A recipient owes a general duty under Sec. 106.44(a) to respond to
sexual harassment in a manner that is not deliberately indifferent.
Where removing an individual on an emergency basis is necessary to
avoid acting with deliberate indifference, a recipient must meet the
requirements in Sec. 106.44(c). The Department disagrees that Sec.
106.44(c) imposes requirements on recipients that violate the Spending
Clause, because recipients understand that compliance with Title IX
will
[[Page 30235]]
require dedication of personnel, time, and resources.\977\ Because this
provision does not prescribe specific post-removal challenge
procedures, we do not believe recipients face significant burdens in
training personnel to comply with new or unknown requirements; this
provision ensures that the essential features of due process of law, or
fundamental fairness, are provided to the respondent (i.e., notice and
opportunity to be heard), and we believe that recipients are already
familiar with these basic requirements of due process (for public
institutions) or fair process (for private institutions).
---------------------------------------------------------------------------
\977\ See discussion under the ``Spending Clause'' subsection of
the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------
In response to commenters' clarification requests, the post-removal
procedure may, but need not, utilize some or all the procedures
prescribed in Sec. 106.45, such as providing for collection and
presentation of evidence. Nothing in Sec. 106.44(c) or the final
regulations precludes a recipient from placing the burden of proof on
the respondent to show that the removal decision was incorrect. Section
106.44(c) does not preclude a recipient from using Title IX personnel
trained under Sec. 106.45(b)(1)(iii) to make the emergency removal
decision or conduct a post-removal challenge proceeding, but if
involvement with the emergency removal process results in bias or
conflict of interest for or against the complainant or respondent,
Sec. 106.45(b)(1)(iii) would preclude such personnel from serving in
those roles during a grievance process.\978\ Facts and evidence relied
on during an emergency removal decision and post-removal challenge
procedure may be relevant in a Sec. 106.45 grievance process against
the respondent but would need to meet the requirements in Sec. 106.45;
for example, a witness who provided information to a postsecondary
institution recipient for use in reaching an emergency removal decision
would need to appear and be cross-examined at a live hearing under
Sec. 106.45(b)(6)(i) in order for the witness's statement to be relied
on by the decision-maker.
---------------------------------------------------------------------------
\978\ Section 106.45(b)(1)(iii) requires all Title IX
Coordinators, investigators, decision-makers, and persons who
facilitate an informal resolution to be free from bias or conflicts
of interest for or against complainants or respondents generally, or
for or against any individual complainant or respondent.
---------------------------------------------------------------------------
Changes: None.
How OCR Will Enforce the Provision
Comments: Commenters requested clarification about how OCR would
enforce Sec. 106.44(c), including what standard OCR would use in
deciding whether a removal was proper; whether OCR would only find a
violation if the recipient violates Sec. 106.44(c) with deliberate
indifference; whether violating this provision constitutes a violation
of Title IX; whether OCR would defer to the determination reached by
the recipient even if OCR would have reached a different determination
based on the independent weighing of the evidence; whether a harmless
error standard would apply to OCR's evaluation of a proper removal
decision and only require reversing the recipient's removal decision if
OCR thinks the outcome was affected by a recipient's violation of Sec.
106.44(c); and whether OCR, or the recipient, would bear the burden of
showing the correctness or incorrectness of the removal decision or the
burden of showing that any violation affected the outcome or not.
Discussion: OCR will enforce this provision fully and consistently
with other enforcement practices. OCR will not apply a harmless error
standard to violations of Title IX, and will fulfill its role to ensure
compliance with Title IX and these final regulations regardless of
whether a recipient's non-compliance is the result of the recipient's
deliberate indifference or other level of intentionality. Recipients
whose removal decisions fail to comply with Sec. 106.44(c) may be
found by OCR to be in violation of these final regulations. As
discussed above, a recipient may need to undertake an emergency removal
under Sec. 106.44(c) in order to meet its duty not to be deliberately
indifferent to sexual harassment. However, OCR will not second guess
the decisions made under a recipient's exercise of discretion so long
as those decisions comply with the terms of Sec. 106.44(c). For
example, OCR may assess whether a recipient's failure to undertake an
individualized risk assessment was deliberately indifferent under Sec.
106.44(a), but OCR will not second guess a recipient's removal decision
based on whether OCR would have weighed the evidence of risk
differently from how the recipient weighed such evidence. While not
every regulatory requirement purports to represent a definition of sex
discrimination, Title IX regulations are designed to make it more
likely that a recipient does not violate Title IX's non-discrimination
mandate, and the Department will vigorously enforce Title IX and these
final regulations.
Changes: None.
Section 106.44(d) Administrative Leave
Comments: Some commenters expressed support for Sec. 106.44(d),
asserting that this provision appropriately recognizes that cases
involving employees as respondents, especially faculty or
administrative staff, should have different frameworks than cases
involving students.
Some commenters asserted that it is unclear what standard a
recipient must satisfy before it may place an employee on
administrative leave. Commenters recommended giving discretion to an
elementary and secondary school recipient to implement an alternate
assignment (such as administrative reassignment to home) for staff
during the pendency of an investigation, provided the same is otherwise
permitted by law.
Commenters wondered how the Department defines ``administrative
leave,'' whether Sec. 106.44(d) applies to paid or unpaid leave, and
whether that would depend on how existing recipient employee conduct
codes or employment contracts address the issue of paid or unpaid
leave. Commenters asked whether an employee-respondent placed on leave
may collect back pay from the recipient, if the grievance process
determines there was insufficient evidence of misconduct. One commenter
argued that administrative leave must include pay and benefits, as well
as lodging if the employee-respondent resided in campus housing.
One commenter asserted that treating non-student employees
differently than students or student-employees under Sec. 106.44(d)
constitutes discrimination. Another commenter questioned why recipients
can deny employees paychecks for months until the conclusion of a
formal grievance process, but give immediate due process for students
to challenge an emergency removal; the commenter asserted that the
recipient could simply provide a free semester of college to cover any
loss to a student yet the proposed rules do not require a recipient to
give back pay to an employee. Some commenters argued that Sec.
106.44(c) emergency removal requirements to undertake an individualized
safety and risk analysis and provide notice and an opportunity to
challenge should also apply to administrative leave so that employees
receive the same due process protections as students. Commenters argued
that school investigations can take several months and that being on
leave, especially without pay, can be a severe hardship for many
employees. Commenters asserted that the Department should explicitly
require recipients to secure a removed employee's personal property and
be responsible for any damage occurring to
[[Page 30236]]
the property before the removed employee can regain custody.
Commenters asserted that Sec. 106.44(d) should apply to student-
employee respondents and should be revised to limit the provision to
administrative leave ``from the person's employment,'' so that a
student-employee respondent could still have access to the recipient's
educational programs but the recipient would not be forced to continue
an active employment relationship with that respondent during the
investigation. For example, commenters argued, a recipient should not
be compelled to allow a teaching assistant who has been accused of
sexual harassment to continue teaching while the accusations are being
investigated.
Commenters argued that Sec. 106.44(d) should reference disability
laws that protect employees parallel to the references to disability
laws in Sec. 106.44(c).
Discussion: The Department appreciates the support from commenters
for Sec. 106.44(d), giving a recipient discretion to place respondents
who are employees on administrative leave during the pendency of an
investigation.
We acknowledge commenters' concerns that Sec. 106.44(d) does not
specify conditions justifying administrative leave; however, we desire
to give recipients flexibility to decide when administrative leave is
appropriate. If State law allows or requires a school district to place
an accused employee on ``reassignment to home'' or alternative
assignment, Sec. 106.44(d) does not preclude such action while an
investigation under Sec. 106.45 into sexual harassment allegations
against the employee is pending.
The Department does not define ``administrative leave'' in this
provision, but administrative leave is generally understood as
temporary separation from a person's job, often with pay and benefits
intact. However, these final regulations do not dictate whether
administrative leave during the pendency of an investigation under
Sec. 106.45 must be with pay (or benefits) or without pay (or
benefits). With respect to the terms of administrative leave,
recipients who owe obligations to employees under State laws or
contractual arrangements may comply with those obligations without
violating Sec. 106.44(d). Similarly, these final regulations do not
require back pay to an employee when the pending investigation results
in a determination that the employee was not responsible. Further, this
provision does not require a recipient to cover the costs of lodging
for, or to secure the personal property of, an employee placed on
administrative leave, although the final regulations do not preclude a
recipient from taking such actions. We note that these final
regulations similarly allow--but do not require--a recipient to repay a
respondent for expenses incurred as a result of an emergency removal or
to take actions to secure personal property during a removal under
Sec. 106.44(c) (whether the removed respondent was a student, or an
employee). We also note that Sec. 106.6(f) provides that nothing in
this part may be read in derogation of an individual's rights,
including an employee's rights, under Title VII \979\ and that other
laws such as Title VII may dictate whether administrative leave should
be paid or unpaid and whether a respondent should be repaid for
expenses incurred as a result of any of the recipient's actions.
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\979\ For discussion of the revision to language in Sec.
106.6(f) (i.e., stating in these final regulations that nothing in
this part may be read in derogation of an individual's rights
instead of an employee's rights, under Title VII), see the ``Section
106.6(f) Title VII and Directed Question 3 (Application to
Employees)'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble.
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The Department acknowledges that being placed on administrative
leave--especially if the leave is without pay--may constitute a
hardship for the employee. However, no respondent who is an employee
may be kept on administrative leave indefinitely, because Sec.
106.44(d) does not authorize administrative leave unless a Sec. 106.45
grievance process has been initiated, and Sec. 106.45(b)(1)(v)
requires the grievance process to be concluded within a designated
reasonably prompt time frame. As proposed in the NPRM, Sec. 106.44(d)
provided that a recipient may place a non-student employee respondent
on administrative leave during the pendency of an investigation; this
was intended to refer to an investigation conducted pursuant to the
Sec. 106.45 grievance process. To clarify this point, the Department
replaces ``an investigation'' with ``a grievance process that complies
with Sec. 106.45'' in Sec. 106.44(d) to make it clear that a
recipient may place a non-student employee respondent on administrative
leave during the pendency of a grievance process that complies with
Sec. 106.45. The Department also revised Sec. 106.44(d) to provide
that ``nothing in this subpart'' instead of ``nothing in this section''
precludes a recipient from placing a non-student employee respondent on
administrative leave to clarify that Sec. 106.44(d) applies to subpart
D of Part 106 of Title 34 of the Code of Federal Regulations. This
revision makes it clear that nothing in subpart D of Part 106 of Title,
which concerns nondiscrimination on the basis of sex in education
programs or activities receiving Federal financial assistance and which
includes other provisions such as Sec. 106.44 and Sec. 106.45,
precludes a recipient from placing a non-student employee respondent on
administrative leave during the pendency of a grievance process that
complies with Sec. 106.45.
The Department appreciates commenters' suggestions that the same
due process protections (notice and opportunity to challenge a removal)
that apply to respondents under Sec. 106.44(c) should apply to an
employee placed on administrative leave under Sec. 106.44(d). This is
unnecessary, because Sec. 106.44(c) applies to an emergency removal of
any respondent. Any respondent (whether an employee, a student, or
other person) who poses an immediate threat to the health or safety of
any student or other individual may be removed from the recipient's
education program or activity on an emergency basis, where an
individualized safety and risk analysis justifies the removal. Thus,
respondents who are employees receive the same due process protections
with respect to emergency removals (i.e., post-removal notice and
opportunity to challenge the removal) as respondents who are students.
The Department also clarifies that pursuant to Sec. 106.44(d), a
recipient may place a non-student employee respondent on administrative
leave, even if the emergency removal provision in Sec. 106.44(c) does
not apply. With respect to student-employee respondents, we explain
more fully, below, that these final regulations do not necessarily
prohibit a recipient from placing a student-employee respondent on
administrative leave if doing so does not violate other regulatory
provisions. For example, placing a student-employee respondent on
administrative leave with pay may be permissible as a supportive
measure, defined in Sec. 106.30, for a complainant (for instance, to
maintain the complainant's equal educational access and/or to protect
the complainant's safety or deter sexual harassment) as long as that
action meets the conditions that a supportive measure is not punitive,
disciplinary, or unreasonably burdensome to the respondent. Whether a
recipient considers placing a student-employee respondent on
administrative leave as part of a non-deliberately indifferent response
under Sec. 106.44(a) is a decision that the Department will evaluate
based on whether such a response is clearly
[[Page 30237]]
unreasonable in light of the known circumstances. The Department will
interpret these final regulations in a manner that complements an
employer's obligations under Title VII, and nothing in these final
regulations or in Part 106 of Title 34 of the Code of Federal
Regulations may be read in derogation of any individual's rights,
including any employee's rights, under Title VII, as explained in more
detail in the ``Section 106.6(f) Title VII and Directed Question 3
(Application to Employees)'' subsection of the ``Clarifying Amendments
to Existing Regulations'' section of this preamble.
Section 106.44(a) prohibits a recipient from imposing disciplinary
sanctions against a respondent without following a grievance process
that complies with Sec. 106.45. Administrative leave without pay is
generally considered disciplinary, and would likely be prohibited under
Sec. 106.44(a) in the absence of the Sec. 106.44(d) administrative
leave provision. The Department believes that while an investigation is
pending, a recipient should have discretion to place an employee-
respondent on any form of administrative leave the recipient deems
appropriate, so that the recipient has flexibility to protect students
from exposure to a potentially sexually abusive employee. Numerous
commenters asserted that educator sexual misconduct is prevalent
throughout elementary and secondary schools, and postsecondary
institutions.\980\ For these reasons, the final regulations permit, but
do not require, what may amount to an interim suspension of an
employee-respondent (i.e., administrative leave without pay) even
though the final regulations prohibit interim suspensions of student-
respondents. We reiterate that any respondent may be removed on an
emergency basis under Sec. 106.44(c).
---------------------------------------------------------------------------
\980\ E.g., Charol Shakeshaft, Educator Sexual Misconduct: A
Synthesis of Existing Literature (2004) (prepared for the U.S.
Dep't. of Education) (ten percent of children were targets of
educator sexual misconduct by the time they graduated from high
school); National Academies of Science, Engineering, and Medicine,
Sexual Harassment of Women: Climate, Culture, and Consequences in
Academic Sciences, Engineering, and Medicine 61 (Frasier F. Benya et
al. eds., 2018) (describing the prevalence of faculty-on-student
sexual harassment at the postsecondary level).
---------------------------------------------------------------------------
We do not believe that employees placed on administrative leave are
denied sufficient due process under these circumstances, because in
order for Sec. 106.44(d) to apply, a Sec. 106.45 grievance process
must be underway, and that grievance process provides the respondent
(and complainant) with clear, strong procedural protections designed to
reach accurate outcomes, including the right to conclusion of the
grievance process within the recipient's designated, reasonably prompt
time frame. As previously explained, the Department revised Sec.
106.44(d) to clarify that a recipient may place a non-student
respondent on administrative leave during the pendency of a grievance
process that complies with Sec. 106.45.
Commenters erroneously asserted that because Sec. 106.44(d)
applies only to ``non-student employees,'' a recipient is always
precluded from placing an employee-respondent on administrative leave
if the employee is also a student. We decline to make Sec. 106.44(d)
apply to student-employees or to change this provision to specify that
administrative leave is ``from the person's employment.'' Consistent
with Sec. 106.6(f), where an employee is not a student, we do not
preclude a recipient-employer from placing a non-student employee on
administrative leave during the pendency of a grievance process that
complies with Sec. 106.45. These final regulations do not prohibit a
recipient from placing a student-employee respondent on administrative
leave if doing so does not violate other regulatory provisions. As
discussed above, placing a student-employee respondent on
administrative leave with pay may be permissible as a supportive
measure, defined in Sec. 106.30, and may be considered by the
recipient as part of the recipient's obligation to respond in a non-
deliberately indifferent manner under Sec. 106.44(a). Where a student
is also employed by their school, college, or university, it is likely
that the student depends on that employment in order to pay tuition, or
that the employment is important to the student's academic
opportunities. Administrative leave may jeopardize a student-employee's
access to educational benefits and opportunities in a way that a non-
student employee's access to education is not jeopardized. Accordingly,
administrative leave is not always appropriate for student-employees.
There may be circumstances that justify administrative leave with pay
for student-employees, and the specific facts of a particular matter
will dictate whether a recipient's response in placing a student-
employee on administrative leave is permissible. For example, if a
student-employee respondent works at a school cafeteria where the
complainant usually eats, a recipient may determine that placing the
student-employee respondent on administrative leave with pay, during
the pendency of a grievance process that complies with Sec. 106.45,
will not unreasonably burden the student-employee respondent, or the
recipient may determine that re-assigning the student-employee
respondent to a different position during pendency of a Sec. 106.45
grievance process, will not unreasonably burden the student-employee
respondent. If a recipient places a party who is a student-employee on
administrative leave with pay as a supportive measure, then such
administrative leave must be non-disciplinary, non-punitive, not
unreasonably burdensome, and otherwise satisfy the definition of
supportive measures in Sec. 106.30. With respect to a student-employee
respondent, a recipient also may choose to take measures other than
administrative leave that could constitute supportive measures for a
complainant, designed to protect safety or deter sexual harassment
without unreasonably burdening the respondent. For example, where an
employee is also a recipient's student, it is likely that the recipient
has the ability to supervise the student-employee to ensure that any
continued contact between the student-employee respondent and other
students occurs under monitored or supervised conditions (e.g., where
the respondent is a teaching assistant), during the pendency of an
investigation. If a recipient removes a respondent pursuant to Sec.
106.44(c) after conducting an individualized safety and risk analysis
and determining that an immediate threat to the physical health or
safety of any students or other individuals justifies removal, then a
recipient also may remove a student-employee respondent from any
employment opportunity that is part of the recipient's education
program or activity.
The Department is persuaded by commenters who asserted that
analogous disability protections should expressly apply for employee-
respondents under Sec. 106.44(d) as for respondents under the Sec.
106.44(c) emergency removal provision. We have revised Sec. 106.44(d)
of the final regulations to state that this provision may not be
construed to modify any rights under Section 504 or the ADA.
Changes: We have revised Sec. 106.44(d) to clarify that it will
not be construed to modify Section 504 or the ADA.\981\ We also revised
Sec. 106.44(d) to clarify that nothing in subpart D of Part 106, Title
34 of the Code of Regulations, precludes
[[Page 30238]]
a recipient from placing a non-student employee respondent on
administrative leave during the pendency of a grievance process that
complies with Sec. 106.45.
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\981\ As discussed in the ``Section 106.6(f) Title VII and
Directed Question 3 (Application to Employees)'' subsection of the
``Clarifying Amendments to Existing Regulations'' section of this
preamble, we revised the reference to ``this section'' to ``this
subpart'' in Sec. 106.44(d).
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Section 106.45 Recipient's Response to Formal Complaints
General Requirements for Sec. 106.45 Grievance Process
Section 106.45(a) Treatment of Complainants or Respondents Can Violate
Title IX
Comments: Commenters including students, professors, campus
administrators, and attorneys, expressed appreciation and support for
Sec. 106.45(a). Some commenters asserted that Sec. 106.45(a) is a
welcome addition because in recent years, Federal judges have expressed
concerns about how university treatment of respondents (or
complainants) might run afoul of Title IX and contradict Title IX's
promise of gender equity. Some commenters noted that although Federal
courts have not assumed that all unfair procedures depriving
respondents of a fair process necessarily equate to sex
discrimination,\982\ numerous Federal courts have identified plausible
claims of an institutions' sex discrimination against respondents, and
commenters cited Federal cases \983\ where courts noted sex
discrimination may exist where an institution failed to investigate
evidence that the complainant might also have committed sexual
misconduct in the same case, credited only female witnesses, ignored
exonerating evidence because of preconceived notions about how males
and females behave, used gender-biased training materials that portray
only men as sexual predators or only women as victims, or denied the
respondent necessary statistical information to test allegations of
gender bias.
---------------------------------------------------------------------------
\982\ Commenters cited: Nokes v. Miami Univ., 1:17-CV-482, 2017
WL 3674910 (S.D. Ohio Aug. 25, 2017); Sahm v. Miami Univ., 110 F.
Supp. 3d 774 (S.D. Ohio 2015); Bleiler v. Coll. of the Holy Cross,
No. 1:11-CV-11541, 2013 WL 4714340 (D. Mass. Aug. 26, 2013).
\983\ Commenters cited: Doe v. Baum, 903 F.3d 575 (6th Cir.
2018); Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018); Rossley v.
Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018); Doe v. Univ. of
Miss., No. 3:16-CV-63, 2018 WL 3570229 (S.D. Miss. July 14, 2018);
Doe v. Univ. of Pa., 270 F. Supp. 3d 799 (E.D. Pa. 2017); Doe v.
Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017); Doe v. Williams
Coll., No. 3:16-CV-30184 (D. Mass. Apr. 28, 2017); Saravanan v.
Drexel Univ., No. 2:17-CV-03409, 2017 WL 5659821 (E.D. Pa. Nov. 24,
2017); Marshall v. Ind. Univ., No. 1:15-CV-00726, 2016 WL 4541431
(S.D. Ind. Aug. 31, 2016).
---------------------------------------------------------------------------
Other commenters gave examples of how they have observed sex-driven
unfair treatment against respondents in campus Title IX proceedings. A
few commenters pointed out that when a sexual harassment grievance
process favors females over males in an attempt to be equitable to
victims, the result is often that male victims of sexual harassment are
not treated equitably; some commenters cited to statistics showing that
similar percentages of men (5.3 percent) and women (5.6 percent)
experience sexual violence other than rape each year,\984\ that about
14 percent of reported rape cases involve men or boys, one in six
reported sexual assaults is against a boy, one in 25 reported sexual
assaults is against a man,\985\ and that a survey of 27 colleges and
universities revealed that 40.9 percent of undergraduate heterosexual
males had experienced sexual harassment, intimate partner violence, or
stalking, compared to 60.5 percent of undergraduate heterosexual
females.\986\ Some commenters opined that the Department's withdrawn
2011 Dear Colleague Letter contributed to more instances of
universities applying grievance procedures in a sex-discriminatory
manner (usually against respondents, who, commenters argued, are
overwhelmingly male). At least one commenter supportive of Sec.
106.45(a) cited a white paper by NCHERM cautioning colleges and
universities to avoid applying grievance procedures in an unfair,
biased manner (whether favoring complainants, or favoring the accused)
and urging institutions to have balanced processes.\987\ Several
commenters, including attorneys and organizations with experience
representing accused students, supported Sec. 106.45(a) because
although the provision only clarifies what is already the intent of the
law, the provision is necessary to counter institutional bias in favor
of female accusers and against male accused students, as both are
entitled to equally fair procedures untainted by gender bias; one such
commenter referred to Sec. 106.45(a) as an ``essential corrective'' to
gender bias that permeates campus sexual misconduct proceedings, and
another believed that the provision will encourage schools to be more
careful in how they treat both sides.
---------------------------------------------------------------------------
\984\ Commenters cited: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): 2010
Summary Report Tables 2.1 and 2.2 (Nov. 2011).
\985\ Commenters cited: National Alliance to End Sexual
Violence, ``Male Victims,'' (``About 14% of reported rapes involve
men or boys, 1 in 6 reported sexual assaults is against a boy, and 1
in 25 reported sexual assaults is against a man.''), https://www.endsexualviolence.org/where_we_stand/male-victims/.
\986\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
\987\ Commenters cited: National Center for Higher Education
Risk Management (NCHERM), White Paper: Due Process and the Sex
Police 14-15 (2017) (``There are always unintended consequences to
showing favoritism. If a college is known to be biased toward
responding parties, this can chill the willingness of victims/
survivors to report. If a college is known to be biased toward
reporting parties, a victim/survivor's sense of safety or justice
based on the campus outcome in the short run may be quickly
compromised by a court order or lawsuit reinstating the responding
party, giving her a Pyrrhic victory, at best. What is needed for all
of our students is a balanced process that centers on their
respective rights while showing favoritism to neither. Not only is
that best, it is required by law.'').
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' support for
Sec. 106.45(a) and acknowledges that many commenters have observed
through personal experiences navigating campus sexual misconduct
proceedings that some recipients have applied grievance procedures in a
manner that shows discrimination against respondents on the basis of
sex. We note that other commenters have recounted personal experiences
navigating campus sexual misconduct proceedings perceived to be biased
against complainants on the basis of sex. To the extent that such
discriminatory practices occur, Sec. 106.45(a) advises recipients
against sex discriminatory practices during the grievance process and
to avoid different treatment favoring or disfavoring any party on the
basis of sex. However, to clarify that Sec. 106.45(a) applies as much
to complainants as to respondents, the final regulations revise the
language in this provision but retain the provision's statement that
how a recipient treats a complainant, or a respondent, ``may''
constitute sex discrimination under Title IX. The Department emphasizes
that any person regardless of sex may be a victim or perpetrator of
sexual harassment and that different treatment due to sex-based
stereotypes about how men or women behave with respect to sexual
violence violates Title IX's non-discrimination mandate.
Changes: The final regulations revise Sec. 106.45(a) to state more
clearly that treatment of a complainant or respondent may constitute
sex discrimination in violation of Title IX.
Comments: Some commenters opposed Sec. 106.45(a), claiming that
this provision would harbor perpetrators by permitting them to claim a
Title IX violation even if the recipient merely opens an investigation
into their conduct, and would revictimize and retraumatize survivors.
Some commenters argued that this provision operates from a premise of
false equivalency since the respondent is not involved in the process
on the basis of their sex but rather on the basis of their
[[Page 30239]]
alleged behavior whereas the complainant alleges to have suffered Title
IX sexual harassment (discrimination on the basis of sex). Some
commenters argued that a recipient's treatment of the respondent does
not constitute discrimination on the basis of sex under Title IX unless
sex bias was a factor and therefore the Department lacks authority to
issue a regulation that equates unfair treatment of a respondent with
sex discrimination. Other commenters contended that Title IX \988\ does
not include the grievance process prescribed in these final regulations
and does not address the conduct of school officials implementing a
grievance process, and that the Department has no authority to create
new individual rights under Title IX. At least one commenter argued
that the purpose of Sec. 106.45(a) appears to be justifying the
entirety of the Department's prescribed grievance process (which the
commenter argued is characterized by rape exceptionalism with many
provisions designed to benefit only respondents) by wrongfully
characterizing procedural protections for respondents as needed to
avoid sex discrimination. Another commenter argued that Sec. 106.45(a)
turns Title IX on its head by making respondents accused of sexual
harassment into a protected class, enabling respondents to make a sex
discrimination claim for any deviation from the Sec. 106.45 grievance
process requirements while complainants would need to show deliberate
indifference to claim sex discrimination.
---------------------------------------------------------------------------
\988\ Commenters cited: 20 U.S.C. 1681(a).
---------------------------------------------------------------------------
Some commenters asserted that this provision hamstrings recipients
excessively and that the provision is fundamentally unfair to
survivors. Some commenters argued that the provision grants respondents
the right to sue for sex discrimination under Title IX and contended
that fear of respondent litigation causes recipients to deprive
complainants of due process and fair procedures by, for example, giving
respondents access to information or accommodations not given to the
complainant or to deliberately mislead the complainant about the
investigation. One commenter characterized Sec. 106.45(a) as giving an
``unsubstantiated right of action for respondents under Title IX'' that
will cause ``risk-averse universities to fail to investigate properly,
and that schools and university legal counsel will be incentivized to
never find in a survivor's favor, even when the facts clearly indicate
that sexual violence occurred,'' leading to more complainants suing
recipients privately under Title IX just to force institutions to treat
complainants equally. This concern was echoed by a few commenters who
argued that this provision would cause institutions to ignore reports
and refuse to punish perpetrators for fear of respondent lawsuits.
Other commenters characterized Sec. 106.45(a) as purporting to
consider the treatment of the respondent as equally violating Title IX
as the alleged behavior (sexual violence) prompting the Title IX case
in the first place, while another commenter believed this provision
meant that unfair treatment of a respondent constituted sexual
harassment. A few commenters argued that Sec. 106.45(a) unnecessarily
risks incentivizing institutions to treat survivors unfairly, because
respondents already have legal theories (such as violation of due
process and breach of contract) with which to challenge unfair
discipline, and Federal courts \989\ have appropriately made it
difficult for respondents to successfully challenge unfair discipline
as sex discrimination, either on an erroneous outcome or selective
enforcement theory--a result that would be undermined by Sec.
106.45(a) giving respondents new rights to pursue unfair discipline
claims under the auspices of Title IX.
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\989\ Commenters cited, e.g.: Doe v. Colgate Univ. Bd. of
Trustees, 760 F. App'x 22 (2d Cir. 2019); Doe v. Cummins, 662 F.
App'x 437, 451-53 (6th Cir. 2016); Yusuf v. Vassar Coll., 35 F.3d
709, 715 (2d Cir. 1994); Preston v. Va. ex rel. New River Comm.
Coll., 31 F.3d 203, 207 (4th Cir. 1994); Doe v. Univ. of Cincinnati,
173 F. Supp. 3d 586, 606-07 (S.D. Ohio 2016); Winter v. Pa. State
Univ., 172 F. Supp. 3d 756, 775-76 (M.D. Pa. 2016); Nungesser v.
Columbia Univ., 169 F. Supp. 3d 353, 364 (S.D.N.Y. 2016); Doe v.
Columbia Univ., 101 F. Supp. 3d 356, 372 (S.D.N.Y. 2015); Doe v.
Univ. of the So., 687 F. Supp. 2d 744, 756 (E.D. Tenn. 2011);
Patenaude v. Salmon River Cent. Sch. Dist., No. 3:03-CV-1016, 2005
WL 6152380 (N.D.N.Y. Feb. 16, 2005).
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One commenter, a Title IX Coordinator, stated that Sec. 106.45(a)
seems unnecessary because typically both parties are members of the
recipient's community and the recipient should not discriminate against
any member of its community. One commenter opposed Sec. 106.45(a)
because it tells male students they have been victimized and gives male
students more incentive to gratify themselves at the expense of a
woman's education. One commenter argued that if stating that a
recipient's treatment of a party in sexual harassment proceedings
``may'' constitute sex discrimination is sufficient to justify the
Department regulating extensive grievance procedures in sexual
harassment cases, there is no end to the Department's authority, on the
same reasoning, to regulate any other type of interaction between a
school and its students or employees, since any action taken by a
recipient ``may'' constitute sex discrimination.
Some commenters suggested modifications in language including to
specify that a recipient's response to a complaint may constitute sex
discrimination where: The recipient deprives a respondent of access to
education based on sex stereotypes or by using procedures that
discriminate on the basis of sex; the recipient acts with deliberate
indifference; by a reasonable and objective standard, the ``treatment''
is sufficiently severe or pervasive so as to interfere with a student's
educational opportunities and/or create a hostile work environment;
there is evidence of discriminatory application of Title IX or acts of
retaliation; the recipient uses investigatory or other acts to mistreat
(or not adequately treat well) the respondent. Another commenter
asserted that Sec. 106.45(a) should specify that programs funded by
the U.S. Department of Justice's Office on Violence Against Women (OVW)
must comply with these final regulations. Another commenter argued that
Sec. 106.45 should consider that when in doubt, the recipient may err
on side of releasing information in order to avoid liability under
these final regulations.
Discussion: The Department disagrees with commenters who believed
that Sec. 106.45(a) would harbor perpetrators and revictimize or
retraumatize survivors by permitting respondents to claim a Title IX
violation based on a recipient's opening of an investigation into
alleged sexual harassment. This provision does not declare that actions
toward a respondent (or complainant) do constitute sex discrimination
in violation of Title IX, but states only that treatment of a
respondent (or treatment of a complainant) may constitute sex
discrimination. Title IX prohibits sex discrimination against all
individuals on the basis of the protected characteristic (sex), and
Sec. 106.45(a) advises recipients to be aware that taking action with
respect to either party in a grievance process resolving allegations of
sexual harassment may not be done in a sex discriminatory manner. This
provision operates to protect complainants and respondents equally,
irrespective of sex, by emphasizing to recipients that although a
grievance process takes place in the context of resolving allegations
of one type of sex discrimination (sexual harassment), a recipient must
take care not to treat a party differently on the basis of the party's
sex because to do so
[[Page 30240]]
would inject further sex discrimination into the situation. For
example, a recipient's decision to investigate sexual harassment
complaints brought by women but not by men may constitute sex
discrimination in the context of a sexual harassment grievance process;
similarly, a recipient's practice of imposing a sanction of expulsion
on female respondents found responsible for sexual harassment, but
suspension on male respondents found responsible, may constitute sex
discrimination.
The Department acknowledges that the text of the Title IX statute
does not specify grievance procedures for resolving allegations of
sexual harassment. However, at the time Title IX was enacted in 1972,
Federal courts had not yet addressed sexual harassment as a form of sex
discrimination, but the Supreme Court's Gebser/Davis framework
explicitly interpreted Title IX's non-discrimination mandate to include
sexual harassment as a form of sex discrimination. Since 1975 the
Department's Title IX regulations have required recipients to adopt and
publish ``grievance procedures'' for the prompt and equitable
resolution of complaints that recipients are committing sex
discrimination against students or employees.\990\ The Department's
authority to enforce such regulations has been acknowledged by the
Supreme Court.\991\ The Department has determined that current
regulatory reference to ``grievance procedures'' that are ``prompt and
equitable'' does not adequately prescribe a consistent, fair, reliable
grievance process for resolving allegations of Title IX sexual
harassment; in accordance with the Department's regulatory authority
under Title IX, the final regulations now set forth a grievance process
for resolving formal complaints raising allegations of sexual
harassment.
---------------------------------------------------------------------------
\990\ 34 CFR 106.8(b).
\991\ Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291-
92 (1998).
---------------------------------------------------------------------------
The Department disagrees that Sec. 106.45(a) turns Title IX on its
head or creates a new protected class (respondents); this provision
focuses on the central purpose of Title IX, to provide protections from
sex-discriminatory practices to all persons, acknowledging that the
ways in which complainants and respondents are treated must not be
affected by the sex of a person even though the underlying allegations
involve allegations of a type of sex discrimination (sexual harassment)
that make it tempting for recipients to intentionally or
unintentionally allow sex-based biases, stereotypes, and
generalizations to influence how procedures are applied. Partly in
response to commenters' misapprehension that Sec. 106.45(a) allows
respondents--but not complainants--to claim sex discrimination whenever
a requirement in Sec. 106.45 is not met, the final regulations permit
either party equally to appeal a determination regarding responsibility
on the basis of procedural irregularity.\992\ Similarly, either party
believing a recipient failed to follow the Sec. 106.45 grievance
process could file a complaint with OCR that could result in the
Department requiring the recipient to come into compliance with Sec.
106.45, regardless of whether the violation of Sec. 106.45 also
amounted to deliberate indifference (as to a complainant) or otherwise
constituted sex discrimination (as to a respondent). A violation of
Sec. 106.45 need not, and might not necessarily, constitute sex
discrimination, whether the violation disfavored a complainant or a
respondent. Thus, Sec. 106.45(a) does not create a special protection
for respondents or special burden for complainants with respect to
allegations that a recipient failed to comply with the Sec. 106.45
grievance process.
---------------------------------------------------------------------------
\992\ Section 106.45(b)(8).
---------------------------------------------------------------------------
For similar reasons, the Department disagrees that Sec. 106.45(a)
in any way ``hamstrings'' recipients into catering to respondents'
interests or permits recipients to ignore complainants or treat
complainants unfavorably out of fear of being sued by respondents.
Rather, Sec. 106.45(a) reminds recipients that Title IX requires
recipients to avoid bias, prejudice, or stereotypes based on sex
whether the recipient's intent is to favor or disfavor complainants or
respondents. As to commenters' concerns that out of fear of respondent
lawsuits recipients will, for example, give respondents access to
information or accommodations not given to the complainant or
deliberately mislead the complainant about the investigation, the
Department notes that such actions likely will either violate specific
provisions of Sec. 106.45 (e.g., Sec. 106.45(b)(5)(vi) requires the
parties to have equal opportunity to inspect and review evidence) or
constitute the very treatment against a complainant that Sec.
106.45(a) cautions against. For reasons discussed in the ``General
Support and Opposition for the Sec. 106.45 Grievance Process'' section
of this preamble, the Department disputes that the Sec. 106.45
grievance process is premised on rape exceptionalism. The prescribed
grievance process is tailored to resolve allegations of sexual
harassment that constitute sex discrimination under a Federal civil
rights law, not to adjudicate criminal charges; the fact that
resolution of sexual harassment under Title IX requires, in the
Department's judgment, a consistent, predictable grievance process in
no way implies that a ``special'' process is needed due to rape myths
or sex-based generalizations (such as, ``women lie about rape''). The
Sec. 106.45 grievance process does not prioritize respondent's rights
over those of complainants. Rather, Sec. 106.45 contains important
procedural protections that apply equally to both parties with three
exceptions: One provision that treats complainants and respondents
equitably instead of equally (by recognizing a complainant's interest
in a recipient providing remedies, and a respondent's interest in
disciplinary sanctions imposed only after a recipient follows a fair
process); \993\ one provision that applies only to respondents (a
presumption of non-responsibility until conclusion of a fair process);
\994\ and one provision that applies only to complainants (protection
from questions and evidence regarding sexual history).\995\
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\993\ Section 106.45(b)(1)(i).
\994\ Section 106.45(b)(1)(iv).
\995\ Section 106.45(b)(6)(i)-(ii).
---------------------------------------------------------------------------
The Department is aware that in private lawsuits brought under
Title IX, Federal courts have been reluctant to equate unfair treatment
of a respondent during a sexual misconduct disciplinary proceeding with
sex discrimination unless the respondent can show that the unfair
treatment was motivated by the party's sex. Contrary to commenters'
assertions, Sec. 106.45(a) does not assume that any unfair treatment
constitutes sex discrimination, but does caution recipients that
treatment of any party could constitute sex discrimination. In this
way, Sec. 106.45(a) shields parties (both complainants and
respondents) from recipient actions during the grievance process that
are impermissibly motivated by sex-based bias or stereotypes in
violation of Title IX's non-discrimination mandate. However, as
discussed above, this does not mean that every violation of Sec.
106.45 necessarily equates to sex discrimination. The Department
disagrees that Sec. 106.45(a) purports to consider treatment of a
respondent during a grievance process as the same type of behavior that
prompted the respondent to become a respondent in the first place
(e.g., alleged sexual misconduct), or that this provision equates
unfair discipline with sexual harassment. The Department appreciates
the opportunity to clarify
[[Page 30241]]
that when a respondent is treated differently based on sex during a
grievance process designed to resolve allegations that the respondent
perpetrated sexual harassment, the sex-based treatment of the
respondent violates Title IX's non-discrimination mandate in a
different way than sexual harassment does when sexual harassment
constitutes sex discrimination under Title IX. Title IX prohibits
different treatment on the basis of sex, which Sec. 106.45(a)
acknowledges may occur against respondents or complainants in violation
of Title IX. Title IX also requires recipients to respond appropriately
to allegations of sexual harassment, because sexual harassment
constitutes a particular form of sex discrimination. The Department
also appreciates the opportunity to clarify that the Department does
not draw an equivalency among different types of sex discrimination
prohibited under Title IX, and recognizes that when sex discrimination
takes the form of sexual harassment victims often face trauma and
negative impacts unique to that particular form of sex discrimination;
indeed, it is this recognition that has prompted the Department to
promulgate legally binding regulations governing recipients' response
to sexual harassment rather than continuing to rely on guidance
documents that lack the force and effect of law.
The Department disagrees with commenters who argued that Sec.
106.45(a) is unnecessary because respondents already have non-Title IX
legal theories on which to challenge unfair discipline and have
erroneous outcome and selective enforcement theories with which to
challenge unfair discipline under Title IX. While it is true that
respondents have relied on such theories to pursue private lawsuits,
similarly complainants already have a judicially implied private right
of action under Title IX to sue a recipient for being deliberately
indifferent to a complainant victimized by sexual harassment. The
existence of private rights of action under Title IX, or under other
laws, does not obviate the importance of the Department using its
statutory authorization to effectuate the purposes of Title IX through
administrative enforcement by promulgating regulations designed to
provide individuals with effective protections against discriminatory
practices. Indeed, in the final regulations some requirements intended
to protect against sex discrimination apply only to the benefit of
complainants (e.g., Sec. 106.44(a) has been revised to require as part
of a non-deliberately indifferent response that recipients notify
complainants of the availability of supportive measures with or without
the filing of a formal complaint, offer supportive measures to the
complainant, and explain to complainants the process for filing a
formal complaint) while other provisions aim to ensure protections
against sex discrimination for both complainants and respondents (e.g.,
Sec. 106.45(a)). The Department has administrative authority to
enforce such provisions, whether or not Federal courts would impose the
same requirements under a complainant's or respondent's private Title
IX lawsuit.
The Department agrees with the commenter who asserted that
recipients should not discriminate against any member of the
recipient's community but maintains that Sec. 106.45(a) is not
rendered unnecessary by that belief. The Department disagrees that
Sec. 106.45(a) conveys to male students that being treated unfairly in
the grievance process gives license to perpetrate sexual misconduct
against women; while a recipient must treat a respondent in a manner
free from sex discrimination and impose discipline only after following
a fair grievance process, those restrictions in no way encourage or
incentivize perpetration of sexual misconduct and in fact help ensure
that sexual misconduct, where reliably determined to have occurred, is
addressed through remedies for victims and disciplinary sanctions for
perpetrators.
The Department understands the commenter's concern that Sec.
106.45(a) could be misunderstood to justify the Department regulating
any facet of a recipient's interaction with students and employees
because in any circumstance a recipient ``may'' act in a sex-biased
manner. The Department appreciates the opportunity to clarify that
Sec. 106.45(a) is necessary in the context of sexual harassment
because allegations of such conduct present an inherent risk of sex-
based biases, stereotypes, and generalizations permeating the way
parties are treated, such that a consistent, fair process applied
without sex bias to any party is needed.
The Department's authority to promulgate regulations under Title IX
encompasses regulations to effectuate the purpose of Title IX, and as
commenters acknowledged, one of the two main purposes of Title IX is
providing individuals with protections against discriminatory
practices.\996\ Implementation of a grievance process for resolution of
sexual harassment lies within the Department's statutory authority to
regulate under Title IX,\997\ and Sec. 106.45(a) is a provision
designed to protect all individuals involved in a sexual harassment
situation from sex discriminatory practices in the context of a
grievance process to resolve formal complaints of sexual harassment.
Thus, Sec. 106.45, and paragraph (a) in particular, does not create
new individual rights but rather prescribes procedures designed to
protect the rights granted all persons under Title IX to be free from
sex discrimination with respect to participation in education programs
or activities.
---------------------------------------------------------------------------
\996\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
\997\ 20 U.S.C. 1682.
---------------------------------------------------------------------------
The Department notes that nothing about Sec. 106.45(a) creates or
grants respondents (or complainants) rights to file private lawsuits,
whether under Title IX or otherwise. Title IX does not contain an
express private right of action, but the Supreme Court has judicially
implied such a right.\998\ In Gebser, the Supreme Court declined to
allow petitioner to seek damages in a private suit under Title IX for
the school's alleged failure to have a grievance procedure as required
under Department regulations because ``failure to promulgate a
grievance procedure does not itself constitute `discrimination' under
Title IX.'' \999\ The Court continued, ``Of course, the Department of
Education could enforce the requirement administratively: Agencies
generally have authority to promulgate and enforce requirements that
effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682,
even if those requirements do not purport to represent a definition of
discrimination under the statute.'' \1000\ Thus, the Department's
exercise of administrative enforcement authority does not grant new
rights to respondents (or complainants) who pursue remedies against
recipients in private lawsuits under Title IX.
---------------------------------------------------------------------------
\998\ Cannon, 441 U.S. at 691.
\999\ Gebser, 524 U.S. at 292.
\1000\ Id.
---------------------------------------------------------------------------
The Department appreciates commenters' suggestions for
modifications to this provision, but declines to add modifiers or
qualifiers that would further describe how and when a recipient's
treatment of a complainant or respondent might constitute sex
discrimination. In the interest of retaining the broad intent of Title
IX's non-discrimination mandate, Sec. 106.45(a) in the final
regulations begins the entirety of a Title IX sexual harassment
grievance process under
[[Page 30242]]
Sec. 106.45 by advising recipients to avoid treatment of any party in
a manner that discriminates on the basis of sex. The Sec. 106.45
grievance process leaves recipients with significant discretion to
adopt procedures that are not required or prohibited by Sec. 106.45,
including, for example, rules designed to conduct hearings in an
orderly manner respectful to all parties. Section 106.45(a) emphasizes
to recipients that such rules or practices that a recipient chooses to
adopt must be applied without different treatment on the basis of sex.
To reinforce the importance of treating complainants and respondents
equally in a grievance process, the final regulations also revise the
introductory sentence of Sec. 106.45(b) to indicate that any grievance
process rules a recipient chooses to adopt (that are not already
required under Sec. 106.45) must treat the parties equally. Together
with Sec. 106.45(a), this modification emphasizes, for the benefit of
any person involved in a Title IX grievance process, that recipients
must treat both parties equally and without regard to sex.
The Department declines to specify what programs (including those
funded by OVW grants) must comply with this provision; questions about
application of Title IX to individual recipients may be submitted to
the recipient's Title IX Coordinator, the Assistant Secretary, or both,
under Sec. 106.8(b)(1). The Department disagrees with the commenter
who suggested that Sec. 106.45(a) will cause a recipient to err on the
side of releasing information or increase a recipient's fear of
retaliation; however, in response to many comments concerning
confidentiality and retaliation, the final regulations include Sec.
106.71 prohibiting retaliation and specifying that the recipient must
keep confidential the identity of any individual who has made a report
or complaint of sex discrimination, including any individual who has
made a report or filed a formal complaint of sexual harassment, any
complainant, any individual who has been reported to be the perpetrator
of sex discrimination, any respondent, and any witness, except as may
be permitted by FERPA, required by law, or as necessary to conduct the
grievance process, and providing that complaints alleging retaliation
may be filed according to the prompt and equitable grievance procedures
for sex discrimination that recipients must adopt under Sec. 106.8(c).
Changes: We are adding Sec. 106.71, prohibiting retaliation and
specifying that the recipient must keep confidential the identity of
any individual who has made a report or complaint of sex
discrimination, including any individual who has made a report or filed
a formal complaint of sexual harassment, any complainant, any
individual who has been reported to be the perpetrator of sex
discrimination, any respondent, and any witness, except as may be
permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34
CFR part 99, or required by law, or to carry out the purposes of 34 CFR
part 106, and providing that complaints alleging retaliation may be
filed according to the grievance procedures for sex discrimination that
recipients must adopt under Sec. 106.8(c). We are revising Sec.
106.45(b)(8) regarding appeals, to expressly permit both parties
equally to appeal a determination regarding responsibility on the basis
of procedural irregularity. We are revising the introductory sentence
of Sec. 106.45(b) to state that any rules a recipient chooses to adopt
(that are not required under Sec. 106.45) must apply equally to both
parties.
Section 106.45(b)(1)(i) Equitable Treatment of Complainants and
Respondents
Comments: Many commenters expressed support for Sec.
106.45(b)(1)(i). Some commenters asserted that this provision rectifies
sex discrimination against males that has occurred in recipients' Title
IX campus proceedings.\1001\ Other commenters stated that this
provision advances Title IX's goal of due process-type fundamental
fairness to both complainants and respondents alike by balancing the
scales. One commenter supported this provision because, in the
commenter's view, too many institutions view allegations as ``self-
proving.'' At least one commenter approved of this provision as being
consistent with existing Sec. 106.8 requiring ``prompt and equitable''
resolution of sex discrimination complaints. Another commenter asserted
that Sec. 106.45(b)(1)(i) is consistent with our Nation's fundamental
values that persons accused of serious misconduct should receive notice
and a fair hearing before unbiased decision makers, and a presumption
of innocence. Another commenter supported this provision because
everyone on campus benefits from fundamentally fair proceedings. One
commenter called this provision a ``welcome change'' because, in the
commenter's view, accused students at institutions of higher education
have had a difficult time restoring their reputations after the
institution removes the accused student before a fair determination of
the truth of the allegations.
---------------------------------------------------------------------------
\1001\ Commenters cited, for example: Jeannie Suk Gersen, The
Transformation of Sexual-Harassment Law Will Be Double-Faced, The
New Yorker (Dec. 20, 2017); American Association of University Women
Educational Foundation, Drawing the Line: Sexual Harassment on
Campus (2005).
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' support for this
provision. The Department agrees that a fair process benefits both
parties, and recipients, by leading to reliable outcomes and increasing
the confidence that parties and the public have regarding Title IX
proceedings in schools, colleges, and universities. The Department also
agrees with the commenter who noted that this provision is consistent
with the principle underlying existing Sec. 106.8 wherein recipients
have long been required to have ``prompt and equitable'' grievance
procedures for handling sex discrimination complaints. The purpose of
Sec. 106.45(b)(1)(i) is to emphasize the importance of treating
complainants and respondents equitably in the specific context of Title
IX sexual harassment, by drawing a recipient's attention to the need to
provide remedies to complainants and avoid punishing respondents prior
to conclusion of a fair process. As discussed in the ``Role of Due
Process in the Grievance Process'' section of this preamble, the Sec.
106.45 grievance process generally treats both parties equally, and
Sec. 106.45(b)(1)(i) is one of the few exceptions to strict equality
where equitable treatment of the parties requires recognizing that a
complainant's interests differ from those of a respondent with respect
to the purpose of the grievance process. This is intended to provide
both parties with a fair, truth-seeking process that reasonably takes
into account differences between a party's status as a complainant,
versus as a respondent. Thus, with respect to remedies and disciplinary
sanctions, strictly equal treatment of the parties does not make sense,
and to treat the parties equitably, a complainant must be provided with
remedies where the outcome shows the complainant to have been
victimized by sexual harassment; similarly, a respondent must be
sanctioned only after a fair process has determined whether or not the
respondent has perpetrated sexual harassment.
Changes: None.
Comments: Some commenters objected to Sec. 106.45(b)(1)(i) on the
ground that it reinforces the approach of the overall grievance process
that commenters believed requires a complainant to undergo a
protracted, often traumatic investigation
[[Page 30243]]
necessitating continuous interrogation of the complainant, all while
forcing the complainant to continue seeing the respondent on campus
because the respondent is protected from removal until completion of
the grievance process; some of these commenters asserted that this will
chill reporting.
Some commenters opposed this provision on the ground that it aims
to treat victims and perpetrators as equals, which is inappropriate
because a victim has suffered harm inflicted by a perpetrator, placing
them in inherently unequal positions of power; some of these commenters
expressed particular concern that this dynamic perpetuates the status
quo where teachers accused of harassing students are believed because
of their position of authority.
Some commenters claimed that by being gender-neutral this provision
makes campuses and Title IX proceedings an unsafe space for victims and
is biased against women because it reflects obsolete and unfounded
assumptions about sexual harassment and sexual violence and perpetuates
harm against women and vulnerable populations. At least one such
commenter urged the Department to instead adopt a feminist model that
supports the healing of survivors of gender-based violence, prevents
revictimization following assault, and seeks to restore power and
control the survivor has lost.\1002\
---------------------------------------------------------------------------
\1002\ Commenters cited: Tara N. Richards et al., A feminist
analysis of campus sexual assault policies: Results from a national
sample, 66 Family Relations 1 (2017) (criticizing gender-neutral
policy approaches because ``In gender-neutral advocacy, policies and
practices are uniformly applied and do not take gender dynamics into
consideration, thus increasing the risk of victim-blaming attitudes
and adherence to myths about rape and other forms of gendered
violence'').
---------------------------------------------------------------------------
Discussion: The Department believes that Sec. 106.45(b)(1)(i)
reflects the critical way in which that a recipient must, throughout a
grievance process, treat the parties equitably. The Department
disagrees that the final regulations require complainants to undergo
protracted, traumatic investigations or necessarily require
complainants to interact with respondents on campus while a process is
pending. The final regulations require a recipient to offer supportive
measures to a complainant with or without the filing of a formal
complaint triggering the grievance process.\1003\ The final regulations
have removed proposed Sec. 106.44(b)(2) and revised the Sec. 106.30
definition of ``complainant'' such that in combination, those revisions
ensure that the final regulations do not require a Title IX Coordinator
to initiate a grievance process over the wishes of a complainant, and
never require a complainant to become a party or to participate in a
grievance process.\1004\ In these ways, the final regulations respect
the autonomy of survivors to choose whether to participate in a
grievance process, while ensuring that regardless of that choice,
survivors are entitled to supportive measures. Although supportive
measures must be non-punitive and non-disciplinary (to any party) and
cannot unreasonably burden the other party,\1005\ supportive measures
do allow complainants options with respect to changes in class
schedules or housing re-assignments even while a grievance process is
still pending, or where no formal complaint has initiated a grievance
process. Moreover, Sec. 106.44(c) permits a recipient to remove a
respondent from the recipient's education program or activity without
undergoing a grievance process, where an individualized risk assessment
shows the respondent poses a threat to any person's physical health or
safety, so long as the respondent is afforded post-removal notice and
opportunity to challenge the removal decision. The final regulations
thus effectuate the purpose of Title IX to provide protection for
complainants, while ensuring that a fair process is used to generate a
factually reliable resolution of sexual harassment allegations before a
respondent is sanctioned based on such allegations. To clarify that the
Sec. 106.30 definition of ``supportive measures'' gives recipients
wide latitude to take actions to support a complainant, even while
having to refrain from imposing disciplinary sanctions against the
respondent, we have added to Sec. 106.45(b)(1)(i) the phrase ``or
other actions that are not supportive measures as defined in Sec.
106.30.'' \1006\ Even where supportive measures, emergency removal
where appropriate, the right of both parties to be accompanied by an
advisor of choice,\1007\ and other provisions intended to ease the
stress of a formal process may result in a complainant finding the
process traumatizing,\1008\ the Department maintains that allegations
of sexual harassment must be resolved accurately in order to ensure
that recipients remedy sex discrimination occurring in education
programs or activities.
---------------------------------------------------------------------------
\1003\ Section 106.44(a) (further requiring the Title IX
Coordinator to contact each complainant to discuss the availability
of supportive measures with or without a formal complaint, consider
the complainant's wishes regarding supportive measures, and explain
to the complainant the process for filing a formal complaint).
\1004\ Section 106.71 (prohibiting retaliation for the purpose
of interfering with any right under Title IX, including the right to
refuse to participate in a Title IX proceeding).
\1005\ Section 106.30 (defining ``supportive measures'').
\1006\ Section 106.45(b)(1)(i), stating that equitable treatment
of the parties means following a Sec. 106.45 grievance process
before imposing disciplinary sanctions or other actions that are not
``supportive measures'' as defined in Sec. 106.30, and remedies for
a complainant whenever a respondent is determined to be responsible,
is mirrored in Sec. 106.44(a), which requires equitable treatment
of respondents in the same manner and (because no grievance process
is required for a recipient's response obligations under Sec.
106.44 to be triggered) equitable treatment of complainants by
offering supportive measures.
\1007\ Section 106.45(b)(5)(iv).
\1008\ E.g., Sec. 106.45(b)(6)(i) (either party has the right
to undergo a live hearing and cross-examination in a separate room,
and this provision deems irrelevant any questions or evidence
regarding a complainant's sexual predisposition (without exception)
and any questions or evidence about a complainant's sexual behavior
with two exceptions).
---------------------------------------------------------------------------
The Department disagrees that treating parties equally throughout
the grievance process, and recognizing specific ways in which
complainants and respondents must be treated equitably under Sec.
106.45(b)(1)(i), inappropriately attempts to place victims and
perpetrators on equal footing without recognizing that victims are
suffering from a perpetrator's conduct. The Department recognizes that
a variety of power dynamics can affect perpetration and victimization
in the sexual violence context, including differences in the sex, age,
or positions of authority of the parties. The Department believes that
a fair process provides procedural tools to parties that can counteract
situations where a power imbalance led to the alleged incident. By
providing both parties with strong, clear procedural rights--including
the right to an advisor of choice to assist a party in navigating the
process--a party perceived as being in a weaker position has the same
rights as the party perceived as having greater power (perhaps due to
sex, age, or a position of authority over the other party), and the
process is more likely to generate accurate determinations about what
occurred between the parties.
The Department disagrees with commenters who criticized this
provision (and the overall approach of the final regulations) for being
gender-neutral. Title IX's non-discrimination mandate benefits
``persons'' without regard to sex.\1009\ The Department believes that
Title IX's non-discrimination mandate is served by an approach that is
neutral with respect to sex. The Department notes that applying a sex-
neutral framework does not imply
[[Page 30244]]
that recipients cannot gain understanding about the dynamics of sexual
violence including particular impacts of sexual violence on women or
other demographic groups--but such background knowledge and information
cannot be applied in a way that injects bias or lack of impartiality
into a process designed to resolve particular allegations of sexual
harassment. Contrary to some commenters' concerns, sex-neutrality in
the grievance process helps prevent the very kind of victim-blaming and
rape myths that have improperly affected responses to females, and does
so in a manner that also prevents improper injection of sex-bias
against males. A sex-neutral approach is also the only approach that
appropriately prohibits generalizations about ``women as victims'' and
``men as perpetrators'' from improperly affecting an objective
evaluation of the facts surrounding each particular allegation and
emphasizes for students and recipients the fact that with respect to
sexual harassment, any person can be a victim and any person can be a
perpetrator, regardless of sex.
---------------------------------------------------------------------------
\1009\ 20 U.S.C. 1681(a) (``No person in the United States
shall, on the basis of sex . . .'').
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.45(b)(1)(i) to include the
phrase ``or other actions that are not supportive measures as defined
in Sec. 106.30'' in addition to disciplinary sanctions, to describe
equitable treatment of a respondent during a grievance process.
Comments: Some commenters characterized this provision as a
``weak'' attempt to restore or preserve a complainant's access to
education without sufficiently acknowledging that often, sexual
harassment causes a complete or total denial of access for the victim
(for example, where a victim drops out of school entirely).\1010\ Some
commenters viewed this provision's description of remedies for a
complainant as too narrow because such remedies must be ``designed to
restore or preserve access'' to the recipient's education program or
activity. At least one commenter understood the phrase ``designed to
restore or preserve access'' to forbid a recipient from imposing a
disciplinary sanction on a respondent unless the sanction itself is
designed to restore or preserve access to education. At least one
commenter suggested adding the word ``equal'' before ``access'' in this
provision to align this provision with the ``equal access'' language
used in Sec. 106.30 defining sexual harassment. A few commenters urged
the Department to add a list of possible remedies for complainants
including counseling, supportive services, and training for staff. At
least one commenter suggested that remedies for a complainant must
actually restore or preserve the complainant's access to education and
so proposed deleting ``designed to'' from this provision.
---------------------------------------------------------------------------
\1010\ Many commenters cited: Cecilia Mengo & Beverly M. Black,
Violence Victimization on a College Campus: Impact on GPA and School
Dropout, 18 Journal of Coll. Student Retention: Research, Theory &
Practice 2, 234, 244 (2015), for the proposition that survivors drop
out of school at higher rates than non-survivors.
---------------------------------------------------------------------------
Discussion: The Department believes that Sec. 106.45(b)(1)(i)
provides a strong, clear requirement for the benefit of victims of
sexual harassment: Where a Sec. 106.45 grievance process results in a
determination that the respondent in fact committed sexual harassment
against the complainant, the complainant must be given remedies. The
Department understands that research shows that sexual harassment
victims drop out of school more often than other students, and in an
effort to prevent that loss of access to education, this provision
mandates that recipients provide remedies. In response to commenters
concerned that the description of remedies is too narrow or unclear,
the final regulations revise this provision. This provision now uses
the phrase ``equal access'' rather than simply ``access,'' in response
to commenters who pointed out that ``equal access'' is the phrase used
in Sec. 106.30 defining sexual harassment. Further, the final
regulations substitute ``determination of responsibility'' for
``finding of responsibility,'' out of caution that this provision's use
of ``finding'' instead of ``determination'' (when the latter is used
elsewhere throughout the proposed rules) caused a commenter's confusion
between remedies for a complainant (which are designed to restore the
complainant's equal access to education) versus disciplinary sanctions
against a respondent (which are not designed to restore a respondent's
access to education). Moreover, the final regulations revise Sec.
106.45(b)(1)(i) to state that remedies may consist of the same
individualized services listed illustratively in Sec. 106.30 as
``supportive measures'' but remedies need not meet the limitations of
supportive measures (i.e., unlike supportive measures, remedies may in
fact burden the respondent, or be punitive or disciplinary in nature).
The Department believes that this additional language in the final
regulations obviates the need to repeat a non-exhaustive list of
possible remedies and gives recipients and complainants additional
clarity about the kind of remedies available to help restore or
preserve equal educational access for victims of sexual harassment.
The Department declines to remove ``designed to'' from this
provision. Sexual harassment can cause severe trauma to victims, and
while Title IX obligates a recipient to respond appropriately when
students or employees are victimized with measures aimed at ensuring a
victim's equal access, the Department does not believe it is reasonable
to hold recipients accountable for situations where despite a
recipient's reasonably designed and implemented remedies, a victim
still suffers loss of access (for example, by dropping out) due to the
underlying trauma. We have also added Sec. 106.45(b)(7)(iv) requiring
Title IX Coordinators to be responsible for the ``effective
implementation'' of remedies to clarify that the burden of effectively
implementing the remedies designed to restore or preserve the
complainant's equal access to education rests on the recipient and must
not fall on the complainant.
The Department acknowledges that the 2001 Guidance discussed
corrective action in terms of both remedying effects of the harassment
on the victim and measures that end the harassment and prevent its
recurrence.\1011\ For reasons described in the ``Deliberate
Indifference'' subsection of the ``Adoption and Adaption of the Supreme
Court's Framework to Address Sexual Harassment'' section of this
preamble, the Department believes that remedies designed to restore and
preserve equal access to the recipient's education programs or
activities is the appropriate focus of these final regulations, and a
recipient's selection and implementation of remedies will be evaluated
by what is not clearly unreasonable in light of the known
circumstances.\1012\ The Department is persuaded by the Supreme Court's
rationale in Davis that courts (and administrative agencies) should not
second guess a school's disciplinary decisions, and the Department
desires to avoid creating regulatory rules that effectively dictate
particular disciplinary sanctions that obligate recipients to attempt
to guarantee that sexual harassment does not recur, instead focusing on
whether a recipient is effectively implementing remedies to
complainants where respondents are
[[Page 30245]]
found responsible for sexual harassment.
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\1011\ 2001 Guidance at 10 (stating that where the school has
determined that sexual harassed occurred, ``The recipient is,
therefore, also responsible for remedying any effects of the
harassment on the victim, as well as for ending the harassment and
preventing its recurrence.'').
\1012\ Recipients must also document their reasons for
concluding that the recipient's response to sexual harassment was
not deliberately indifferent, under Sec. 106.45(b)(10).
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Changes: The final regulations revise Sec. 106.45(b)(1)(i) to use
the phrase ``equal access'' instead of ``access,'' substitute
``determination of responsibility'' for ``finding of responsibility,''
and state that remedies may include the same individualized services
described in Sec. 106.30 defining ``supportive measures'' but unlike
supportive measures, remedies need not avoid burdening the respondent
and can be punitive or disciplinary. We have also added Sec.
106.45(b)(7)(iv) requiring Title IX Coordinators to be responsible for
the ``effective implementation'' of remedies.
Comments: Some commenters objected to Sec. 106.45(b)(1)(i) for
referencing ``due process protections'' owed to respondents, claiming
that respondents have no right to due process in campus administrative
proceedings, or that courts do not require the specific due process
protections that the proposed rules require. Some commenters criticized
this provision for referring to due process protections for respondents
because the reference implies that due process protections are not
important for complainants and thereby discounts and downplays the
needs of victims. At least one commenter recommended modifying this
provision to specify that equitable treatment of both parties requires
due process protections for both parties. Other commenters urged the
Department not to use ``due process'' or ``due process protections'' in
the final regulations and to instead refer to a ``fair process'' for
all parties; similarly, at least one commenter asked for clarification
whether by using the phrase ``due process protections'' the Department
intended to reference constitutional due process or only those
protections set forth in the proposed regulations.
Some commenters contended that Sec. 106.45(b)(1)(i) is
contradicted by other provisions in the proposed rules; for example,
commenters characterized the Sec. 106.44(c) emergency removal
provision as contrary to the requirement for equitable treatment of a
respondent in Sec. 106.45(b)(1)(i) because the emergency removal
section permits schools to remove respondents without due process
protections. Other commenters pointed to the requirement in proposed
Sec. 106.44(b)(2) that Title IX Coordinators must file a formal
complaint upon receiving multiple reports against the same respondent
as inequitable to respondents in contravention of Sec. 106.45(b)(1)(i)
because a respondent should not have to undergo a grievance process
without a cooperating complainant. Other commenters pointed to the
presumption of non-responsibility in Sec. 106.45(b)(1)(iv) as
``inequitable'' to complainants in contradiction with Sec.
106.45(b)(1)(i); other commenters characterized the live hearing and
cross-examination requirements of Sec. 106.45(b)(6)(i) as inequitable
treatment of complainants.
At least one commenter asked the Department to answer whether being
sensitive to the trauma experienced by victims would violate this
provision by being inequitable to respondents. At least one commenter
requested that as part of treating the parties equitably, this
provision should require a Title IX Coordinator to offer, and keep
lists available that describe, various off-campus supportive resources
available to both complainants and respondents, including resources
oriented toward survivors and those oriented toward accused students.
One commenter asserted that this provision should include a statement
that equitable treatment of a respondent must include remedies for a
respondent where a complainant is found to have brought a false
allegation.
Discussion: The Department appreciates commenters' varied concerns
about use of the phrase ``due process protections'' in Sec.
106.45(b)(1)(i) and perceived tension between this provision and other
provisions in the proposed rules. The Department agrees with commenters
that ``due process protections'' caused unnecessary confusion about
whether the proposed rules intended to reference due process of law
under the U.S. Constitution, or only those protections embodied in the
proposed rules. In response to such comments, the final regulations
replace ``due process protections'' with ``a grievance process that
complies with Sec. 106.45'' throughout the final regulations,
including in this provision, Sec. 106.45(b)(1)(i). As explained in the
``Role of Due Process in the Grievance Process'' section of this
preamble, while the Department believes that the Sec. 106.45 grievance
process is consistent with constitutional due process obligations,
these final regulations apply to all recipients including private
institutions that do not owe constitutional protections to their
students and employees, and making this terminology change throughout
the final regulations helps clarify that position.
The Department disagrees that Sec. 106.45(b)(1)(i) implies that
the protections in the grievance process do not also benefit
complainants, or should not be given to complainants. The grievance
process is of equal benefit to complainants and respondents and each
provision has been selected for the purpose of creating a fair process
likely to result in reliable outcomes resolving sexual harassment
allegations. The equitable distinction in Sec. 106.45(b)(1)(i)
recognizes the significance of remedies for complainants and
disciplinary sanctions for respondents, but does not alter the benefit
of the Sec. 106.45 grievance process providing procedural rights and
protections for both parties.
The Department understands commenters' views that certain other
provisions in the final regulations are ``inequitable'' for either
complainants or respondents. For reasons explained in this preamble
with respect to each particular provision, the Department believes that
each provision in the final regulations contributes to effectuating
Title IX's non-discrimination mandate while providing a fair process
for both parties. Section 106.45(b)(1)(i) was not intended to create a
standard of ``equitableness'' under which other provisions of the
proposed rules should be measured. In response to commenters' apparent
perception that Sec. 106.45(b)(1)(i) created a general equitability
requirement that applied to the proposed rules or created conflict
between this provision and other parts of the proposed rules, the final
regulations revise Sec. 106.45(b)(1)(i) to more clearly express its
intent--that equitable treatment of a complainant means providing
remedies, and equitable treatment of a respondent means imposing
disciplinary sanctions only after following the grievance
process.\1013\
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\1013\ The Department notes that similar language is included in
the final regulations in Sec. 106.44(a) such that a recipient's
response in the absence of a formal complaint must treat
complainants equitably by offering supportive measures and must
treat respondents equitably by imposing sanctions only after
following a grievance process that complies with Sec. 106.45.
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Being sensitive to the trauma a complainant may have experienced
does not violate Sec. 106.45(b)(1)(i) or any other provision of the
grievance process, so long as what the commenter means by ``being
sensitive'' does not lead a Title IX Coordinator, investigator, or
decision-maker to lose impartiality, prejudge the facts at issue, or
demonstrate bias for or against any party.\1014\ The Department
declines to require recipients to list off-campus supportive resources
for complainants, respondents, or both, though the final regulations do
not prohibit a recipient from choosing to do this. The Department
believes that
[[Page 30246]]
Sec. 106.45(b)(1)(ix), requiring recipients to describe the range of
supportive measures available to complainants and respondents, is
sufficient to serve the Department's interest in ensuring that parties
are aware of the availability of supportive measures. The Department
declines to require remedies for respondents in situations where a
complainant is found to have brought a false allegation. These final
regulations are focused on sexual harassment allegations, including
remedies for victims of sexual harassment, and not on remedies for
other kinds of misconduct.\1015\
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\1014\ Section 106.45(b)(1)(iii).
\1015\ The Department notes that the final regulations add Sec.
106.71 prohibiting retaliation, and paragraph (b)(2) of that section
cautions recipients that a determination regarding responsibility,
alone, is not sufficient to conclude that a party has made a
materially false statement in bad faith. The Department leaves
recipients with discretion to address false statements (by any
party) under the recipient's own code of conduct.
---------------------------------------------------------------------------
Changes: Section 106.45(b)(1)(i) is revised by replacing ``due
process protections'' with ``a grievance process that complies with
Sec. 106.45'' and by stating that treating complainants equitably
means providing remedies where a respondent has been determined to be
responsible, and treating respondents equitably means imposing
disciplinary sanctions or other actions that are not supportive
measures as defined in Sec. 106.30 only after following the Sec.
106.45 grievance process.
Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant Evidence
Comments: Numerous commenters supported Sec. 106.45(b)(1)(ii)
asserting that it ensures fairness, accuracy, due process, and
impartiality to all parties. Several commenters shared personal
experiences with Title IX investigations in which they witnessed the
recipient ignoring, discounting, burying, or destroying exculpatory
evidence. Similarly, other commenters stated that they have observed
inculpatory evidence being ignored or discounted particularly when a
respondent is a star athlete or otherwise prominent within the
recipient's educational community.
Other commenters expressed concerns about requiring an objective
evaluation of relevant evidence. Some commenters asserted that it would
be challenging to get such evidence in sexual assault cases, because
sexual assault often happens without witnesses who can corroborate
stories. One commenter contended that getting objective evidence every
time would be a ``near-impossible task,'' while another felt it is
``unrealistic'' to expect tangible evidence in all cases. Some
commenters argued that such a high standard would likely chill
reporting. One commenter was concerned that an objective evaluation of
all relevant evidence could lead to respondents extending
investigations indefinitely since almost anything could be relevant and
new evidence or witnesses might surface regularly.
Some commenters expressed support for this provision's preclusion
of making credibility determinations based on party status because it
is inappropriate to make presumptions about trustworthiness based on
whether a person is a complainant or respondent. Other commenters
opposed this part of Sec. 106.45(b)(1)(ii) and suggested modifying the
provision to require that credibility determinations not be based
``solely'' on a person's status, but argued that fact-finders could
base credibility determinations in part on a person's status as a
complainant or respondent. These commenters opposed any categorical bar
to the fact-finder's considerations when determining credibility, and
questioned whether this provision is in significant tension with the
presumption of non-responsibility in Sec. 106.45(b)(1)(iv). Commenters
asserted that Sec. 106.45(b)(1)(ii)'s requirement is problematic for
adjudicators because it directs them to ignore central factors in
credibility determinations, such as what interests a party has at
stake. Commenters argued that courts, law enforcement, and other
investigators have always considered a party's status as a defendant or
plaintiff when determining how to weigh evidence and testimony.
Commenters argued that recipients should be permitted to consider a
party's status when considering the totality of the circumstances to
reach credibility determinations.
A number of commenters proposed modifications related to training
that commenters believed would improve implementation of this provision
and promote objectivity and competence, such as training about applying
rules of evidence, how to collect and evaluate evidence, and how to
determine if evidence is credible, relevant, or reliable.
Many commenters suggested types of evidence that should be
considered, specific investigative processes, or other evidentiary
requirements. Commenters proposed, for example, that the final
regulations should require consideration of letters, videos, photos,
emails, texts, phone calls, social media, mental health history, drug,
alcohol, and medication use, and rape kits. Commenters also proposed
requiring a variety of investigative techniques, including asking the
Department to require recipients to take immediate action to collect
and test all evidence, including permitting recipients to interview
community members and other witnesses (e.g., roommates, dorm residents,
classmates, fraternity members). Commenters also asked whether the
recipient may consider evidence of the respondent's lack of
credibility, other bad acts, and misrepresentation of key facts. Some
commenters asked whether the proposed rules would allow respondents to
introduce lie detector test results and impact statements. Some
commenters wanted the final regulations to require investigators to
identify any data gaps in investigative report noting unavailable
information (e.g., unable to interview eyewitnesses or to visit the
scene of an incident) and all attempts to fill those data gaps, as well
as requiring hearing boards to explain the specific evidentiary basis
for each finding. Other commenters asserted that the final regulations
should require all evidence to be shared with the parties to ensure
fairness, and that an investigator should not get to decide what is
relevant.
Commenters requested that the Department clarify how to evaluate
whether evidence is relevant. Commenters asked how recipients should
make credibility determinations, and whether it would be permissible to
admit character and reputation evidence, including past sexual history
or testimony based on hearsay. One commenter asserted that requiring an
``objective evaluation'' leaves questions about what this term will
mean in practice, noting that similar provisions in the VAWA negotiated
rulemaking in 2012 raised concerns that the subjectivity (at least in
defining bias) would be an overreach into campus administrative
decisions.
Some commenters suggested specific modifications to the wording of
the proposed provision. For example, individual commenters suggested
that the Department: Replace ``objective'' with ``impartial' for
consistency with VAWA; add language emphasizing that the recipient's
determination must be unbiased since recipient bias has been a
significant problem in Title IX investigations; add that objective
evaluation be ``based on rules of evidence under applicable State
law;'' add that schools shall resolve doubts ``in favor of considering
evidence to be relevant and exculpatory'' to address the danger that
recipients will narrowly construe what constitutes exculpatory
evidence; and add that unsubstantiated
[[Page 30247]]
theories of trauma cannot be relied on to conclude that a particular
complainant suffered from trauma or be used to explain away a
complainant's inconsistencies. One commenter asserted that
underweighting relevant testimony simply because someone is a friend to
a party in a case will make it materially harder to prove an assault
and will not promote equitable treatment for all parties; this
commenter mistakenly believed that the proposed rules used the phrase
``arbiters should underweight character feedback from biased
witnesses'' and wanted that language changed.
Discussion: The Department appreciates commenters' support of this
provision and acknowledges other commenters' concerns about Sec.
106.45(b)(1)(ii). While the gathering and evaluation of available
evidence will take time and effort on the part of the recipient, the
Department views any difficulties associated with the provision's
evidence requirement to be outweighed by the due process benefits the
provision will bring to both parties during the grievance process. The
recipient's investigation and adjudication of the allegations must be
based on an objective evaluation of the evidence available in a
particular case; the type and extent of evidence available will differ
based on the facts of each incident. The Department understands that in
some situations, there may be little or no evidence other than the
statements of the parties themselves, and this provision applies to
those situations. As some commenters have observed, Title IX campus
proceedings often involve allegations with competing plausible
narratives and no eyewitnesses, and such situations still must be
evaluated by objectively evaluating the relevant evidence, regardless
of whether that available, relevant evidence consists of the parties'
own statements, statements of witnesses, or other evidence. This
provision does not require ``objective'' evidence (as in, corroborating
evidence); this provision requires that the recipient objectively
evaluate the relevant evidence that is available in a particular case.
The Department disagrees that this provision could permit endlessly
delayed proceedings while parties or the recipient search for ``all''
relevant evidence; Sec. 106.45(b)(1)(v) requires recipients to
conclude the grievance process within designated reasonable time frames
and thus ``all'' the evidence is tempered by what a thorough
investigation effort can gather within a reasonably prompt time frame.
The Department agrees with commenters who noted the
inappropriateness of investigators and decision-makers drawing
conclusions about credibility based on a party's status as a
complainant or respondent. While the Department appreciates the
concerns by commenters advocating that the final regulations should
permit status-based inferences as to a person's credibility, the
Department believes that to do so would invite bias and partiality. To
that end, we disagree with commenters who opposed categorical bars on
the factors that investigators or decision-makers may consider, and who
want to partially judge a person's credibility based on the person's
status as a complainant, respondent, or witness. A process that
permitted credibility inferences or conclusions to be based on party
status would inevitably prejudge the facts at issue rather than
determine facts based on the objective evaluation of evidence, and this
would decrease the likelihood that the outcome reached would be
accurate.
The Department disagrees that Sec. 106.45(b)(1)(ii) conflicts with
the presumption of non-responsibility; in fact, Sec. 106.45(b)(1)(ii)
helps to ensure that the presumption is not improperly applied by
recipients. Section 106.45(b)(1)(iv) affords respondents a presumption
of non-responsibility until the conclusion of the grievance process.
Section 106.45(b)(1)(ii) applies throughout the grievance process,
including with respect to application of the presumption, to ensure
that the presumption of non-responsibility is not interpreted to mean
that a respondent is considered truthful, or that the respondent's
statements are credible or not credible, based on the respondent's
status as a respondent. Treating the respondent as not responsible
until the conclusion of the grievance process does not mean considering
the respondent truthful or credible; rather, that presumption
buttresses the requirement that investigators and decision-makers serve
impartially without prejudging the facts at issue.\1016\ Determinations
of credibility, including of the respondent, must be based on objective
evaluation of relevant evidence--not on inferences based on party
status. Both the presumption of non-responsibility and this provision
are designed to promote a fair process by which an impartial fact-
finder determines whether the respondent is responsible for
perpetrating sexual harassment. Every determination regarding
responsibility must be based on evidence, not assumptions about
respondents or complainants. The Department disagrees that disregarding
party status poses problems for investigators or adjudicators or
directs them to ignore central factors in reaching credibility
determinations. Title IX personnel are not prevented from understanding
and taking into account each party's interests and the ``stakes'' at
issue for each party, yet what is at stake does not, by itself, reflect
on the party's truthfulness.
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\1016\ For further discussion on the purpose and function of the
presumption of non-responsibility, see the ``Section
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of
the ``General Requirements for Sec. 106.45 Grievance Process''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble.
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In response to commenters' concerns about how to determine
``relevance'' in the context of these final regulations, we have
revised Sec. 106.45(b)(1)(iii) specifically to require training on
issues of relevance (including application of the ``rape shield''
protections in Sec. 106.45(b)(6)). Thus, these final regulations
require Title IX personnel to be well trained in how to conduct a
grievance process; within the requirements stated in Sec.
106.45(b)(1)(iii) recipients have flexibility to adopt additional
training requirements concerning evidence collection or evaluation.
Similarly, the Department declines to adopt commenters' suggestions
that the final regulations explicitly allow or disallow certain types
of evidence or utilize specific investigative techniques. The
Department believes that the final regulations reach the appropriate
balance between prescribing sufficiently detailed procedures to foster
a consistently applied grievance process, while deferring to recipients
to tailor rules that best fit each recipient's unique needs. While the
proposed rules do not speak to admissibility of hearsay,\1017\ prior
bad acts, character evidence, polygraph (lie detector) results,
standards for authentication of evidence, or similar issues concerning
evidence, the final regulations require recipients to gather and
evaluate relevant evidence,\1018\ with the understanding that this
includes both inculpatory and exculpatory evidence, and the final
regulations deem questions and evidence about a complainant's prior
sexual behavior to be irrelevant
[[Page 30248]]
with two exceptions \1019\ and preclude use of any information
protected by a legally recognized privilege (e.g., attorney-
client).\1020\ Within these evidentiary parameters recipients retain
the flexibility to adopt rules that govern how the recipient's
investigator and decision-maker evaluate evidence and conduct the
grievance process (so long as such rules apply equally to both
parties).\1021\ Relevance is the standard that these final regulations
require, and any evidentiary rules that a recipient chooses must
respect this standard of relevance. For example, a recipient may not
adopt a rule excluding relevant evidence because such relevant evidence
may be unduly prejudicial, concern prior bad acts, or constitute
character evidence. A recipient may adopt rules of order or decorum to
forbid badgering a witness, and may fairly deem repetition of the same
question to be irrelevant.
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\1017\ While not addressed to hearsay evidence as such, Sec.
106.45(b)(6)(i), which requires postsecondary institutions to hold
live hearings to adjudicate formal complaints of sexual harassment,
states that the decision-maker must not rely on the statement of a
party or witness who does not submit to cross-examination, resulting
in exclusion of statements that remain untested by cross-
examination.
\1018\ The final regulations do not define relevance, and the
ordinary meaning of the word should be understood and applied.
\1019\ Section 106.45(b)(6) contains rape shield protections,
providing that questions and evidence about the complainant's sexual
predisposition or prior sexual behavior are not relevant, unless
such questions and evidence about the complainant's prior sexual
behavior are offered to prove that someone other than the respondent
committed the conduct alleged by the complainant, or if the
questions and evidence concern specific incidents of the
complainant's prior sexual behavior with respect to the respondent
and are offered to prove consent.
\1020\ Section 106.45(b)(1)(x) (precluding a recipient from
using information or evidence protected by a legally recognized
privilege unless the holder of the privilege has waived the
privilege).
\1021\ Of course, the manner in which a recipient adopted or
applied such a rule or practice concerning evaluation of evidence
could constitute sex discrimination, a situation that Sec.
106.45(a) cautions recipients against, and the entirety of a
recipient's grievance process must be conducted impartially, free
from conflicts of interest or bias for or against complainants or
respondents. Further, the introductory sentence of Sec. 106.45(b)
has been revised in the final regulations to ensure that a
recipient's self-selected rules must apply equally to both parties.
The Department notes that the universe of evidence given to the
parties for inspection and review under Sec. 106.45(b)(5)(vi) must
consist of all evidence directly related to the allegations;
determinations as to whether evidence is ``relevant'' are made when
finalizing the investigative report, pursuant to Sec.
106.45(b)(5)(vii) (requiring creation of an investigative report
that ``fairly summarizes all relevant evidence''). Only ``relevant''
evidence can be subject to the decision-maker's objective evaluation
in reaching a determination, and relevant evidence must be
considered, subject to the rape shield and legally recognized
privilege exceptions contained in the final regulations. This does
not preclude, for instance, a recipient adopting a rule or providing
training to a decision-maker regarding how to assign weight to a
given type of relevant evidence, so long as such a rule applies
equally to both parties.
---------------------------------------------------------------------------
The Department disagrees that requiring an ``objective evaluation''
leaves questions about what this will mean in practice; the final
regulations contain sufficient clarity concerning objectivity, while
leaving recipients discretion to apply the grievance process in a
manner that best fits the recipient's needs. Similarly, the Department
is not persuaded that the final regulations permit inappropriate
subjectivity as to defining bias or constitute overreach into campus
administrative proceedings. A commenter raising that concern noted that
the same issue was raised during negotiated rulemaking under VAWA;
however, the Department believes that these final regulations prohibit
bias with adequate specificity (i.e., bias against complainants or
respondents generally, or against an individual complainant or
respondent) yet reserve adequate flexibility for recipients to apply
the prohibition against bias without unduly overreaching into a
recipient's internal administrative affairs. To the extent that the
commenter was arguing that prohibiting bias is itself an overreach into
campus administrative decisions, the Department does not agree. The
text of Title IX prohibits recipients from engaging in discrimination
on the basis of sex. Biased decision making increases the risk of
erroneous outcomes because bias, rather than evidence, dictates the
conclusion. Sex-based bias is a specific risk in the context of sexual
harassment allegations, where the underlying conduct at issue
inherently raises issues related to sex, making these proceedings
susceptible to improper sex-based bias that prevents reliable outcomes.
Other forms of bias on the part of individuals in charge of
investigating and adjudicating allegations also lessen the likelihood
that outcomes are reliable and viewed as legitimate; because Title IX's
non-discrimination mandate requires that recipients accurately identify
(and remedy) sexual harassment occurring in education programs or
activities, these final regulations prohibit bias on the part of Title
IX personnel (in Sec. 106.45(b)(1)(iii)) and require objective
evaluation of evidence (in Sec. 106.45(b)(1)(ii)).
Rather than require recipients to take ``immediate action'' to
collect all evidence, the final regulations require the recipient to
investigate the allegations in a formal complaint \1022\ yet permit
recipients flexibility to conduct the investigation, under the
constraint that the investigation (and adjudication) must be completed
within the recipient's designated, reasonably prompt time frames.\1023\
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\1022\ Section 106.45(b)(5).
\1023\ Section 106.45(b)(1)(v).
---------------------------------------------------------------------------
While the final regulations do not require hearing boards (as
opposed to a single individual acting as the decision-maker), the final
regulations do not preclude the recipient from using a hearing board to
function as a decision-maker, such that more than one individual serves
as a decision-maker, each of whom must fulfill the obligations under
Sec. 106.45(b)(1)(iii). Whether or not the determination regarding
responsibility is made by a single decision-maker or by multiple
decision-makers serving as a hearing board, Sec. 106.45(b)(7)(ii)
requires that decision-makers lay out the evidentiary basis for
conclusions reached in the case, in a written determination regarding
responsibility. Prior to the time that a determination regarding
responsibility will be reached, Sec. 106.45(b)(5)(vi) requires the
recipient to make all evidence directly related to the allegations
available to the parties for their inspection and review, and Sec.
106.45(b)(5)(vii) requires that recipients create an investigative
report that fairly summarizes all relevant evidence. The final
regulations add language in Sec. 106.45(b)(5)(vi) stating that
evidence subject to inspection and review must include inculpatory and
exculpatory evidence whether obtained from a party or from another
source. The Department does not believe it is necessary to require
investigators to identify data gaps in the investigative report,
because the parties' right to inspect and review evidence, and review
and respond to the investigative report, adequately provide opportunity
to identify any perceived data gaps and challenge such deficiencies.
The Department disagrees that an investigator should not get to
decide what is relevant, and the final regulations give the parties
ample opportunity to challenge relevancy determinations. The
investigator is obligated to gather evidence directly related to the
allegations whether or not the recipient intends to rely on such
evidence (for instance, where evidence is directly related to the
allegations but the recipient's investigator does not believe the
evidence to be credible and thus does not intend to rely on it). The
parties may then inspect and review the evidence directly related to
the allegations.\1024\ The investigator must take into consideration
the parties' responses and then determine what evidence is relevant and
summarize the relevant evidence in the investigative report.\1025\ The
parties then have equal opportunity to review the investigative report;
if a party disagrees with an investigator's determination about
relevance, the party can make that
[[Page 30249]]
argument in the party's written response to the investigative report
under Sec. 106.45(b)(5)(vii) and to the decision-maker at any hearing
held; either way the decision-maker is obligated to objectively
evaluate all relevant evidence and the parties have the opportunity to
argue about what is relevant (and about the persuasiveness of relevant
evidence). The final regulations also provide the parties equal appeal
rights including on the ground of procedural irregularity,\1026\ which
could include a recipient's failure to objectively evaluate all
relevant evidence, including inculpatory and exculpatory evidence.
Furthermore, Sec. 106.45(b)(1)(iii) requires the recipient's
investigator and decision-maker to be well-trained to conduct a
grievance process compliant with Sec. 106.45 including determining
``relevance'' within the parameters of the final regulations.
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\1024\ Section 106.45(b)(5)(vi).
\1025\ Section 106.45(b)(5)(vii).
\1026\ Section 106.45(b)(8).
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While the Department appreciates commenters' desire for more
oversight as to how a recipient defines or ``counts'' exculpatory
evidence, based on commenters' observations that recipients have not
consistently understood the need to consider exculpatory evidence as
relevant, the Department believes that the final regulations adequately
address this concern by specifying that relevant evidence must include
both inculpatory and exculpatory evidence, ensuring the parties have
opportunities to challenge relevance determinations, and requiring
Title IX personnel to be trained to serve impartially including
specific training for investigators and decision-makers on issues of
relevance.
While some commenters wished to alter the wording of the provision
in numerous ways, for the reasons explained above the Department
believes that Sec. 106.45(b)(1)(ii) appropriately serves the
Department's goal of providing clear parameters for evaluation of
evidence while leaving flexibility for recipients within those
parameters. The Department thus declines to remove the word
``objective,'' require recipients to adopt any jurisdiction's rules of
evidence, or add rules or presumptions that would require particular
types of evidence to be relevant.
Changes: In the final regulations we add Sec. 106.45(b)(1)(x),
precluding the recipient from using evidence that would result in
disclosure of information protected by a legally recognized privilege.
The final regulations add language in Sec. 106.45(b)(5)(vi) stating
that evidence subject to inspection and review must include inculpatory
and exculpatory evidence whether obtained from a party or from another
source. We have also revised Sec. 106.45(b)(1)(iii) to specifically
require investigators and decision-makers to receive training on issues
of relevance.
Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of Title
IX Personnel; Directed Question 4 (Training)
Comments: Many commenters expressed support for Sec.
106.45(b)(1)(iii) and, in response to the NPRM's directed question
about training, stated that the training provided for in this provision
is adequate. Several commenters believed this provision provides
recipients with appropriate flexibility to decide the amount and type
of training recipients must provide to individuals involved with Title
IX proceedings. At least one commenter, on behalf of a college, noted
that the college already provides for investigators free from bias or
conflict of interest. Several commenters supported this provision
because its prohibition on bias, conflicts of interest, and training
materials that rely on sex stereotypes will lead to impartial
investigations and adjudications. One commenter asserted that the
proposed regulations help reduce bias by ensuring that training
programs are fair and neutral and noted that social scientists and
legal academics have argued that training programs can help
adjudicatory bodies make better decisions.\1027\
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\1027\ Commenters cited: Stephen E. Fienberg & Mark J.
Schervish, The Relevance of Bayesian Inference for the Presentation
of Statistical Evidence and Legal Decisionmaking, 66 Boston Univ. L.
Rev. 771 (1986) (advocating that jurors be instructed in Bayesian
probabilities); James J. Gobert, In Search of the Impartial Jury, 79
J. Crim. L. & Criminology 269, 326 (1988) (suggesting that juries
receive ``impartiality training''); Jennifer A. Richeson & Richard
J. Nussbaum, The Impact of Multiculturalism Versus Color-Blindness
on Racial Bias, 40 J. of Experimental Social Psychol. 417 (2004)
(explaining how diversity training can lead to less implicit bias);
Justin D. Levinson, Forgotten Racial Equality: Implicit Bias,
Decisionmaking, and Misremembering, Duke L. J. 345 (2007) (arguing
for diversity training).
---------------------------------------------------------------------------
Many commenters supported Sec. 106.45(b)(1)(iii) because of
personal experiences with Title IX campus proceedings involving
perceived bias or conflicts of interest that commenters believed
rendered the investigation or adjudication unfair. One commenter
supported this provision because the commenter believed it will
counteract the ideological propaganda having to do with sex and gender
that has been disseminated throughout institutions of higher education.
Another commenter believed this provision will help remedy widespread
sex bias against male students at colleges and universities. One
commenter favored this provision because the topics considered in a
Title IX process are sensitive and personal, improper handling of cases
can potentially retraumatize survivors or lead to unfair outcomes for
both survivors and the accused, and mandatory training should lead to
better results for all involved. One commenter analyzed how and why
unconscious biases and sex-based stereotypes are pernicious especially
in university disciplinary hearings, can constitute Title IX
violations, and lead to biased outcomes. This commenter argued that
bias can subvert procedural protections, which are necessary to render
fair outcomes, and biased adjudicators cannot properly carry out their
duties. One commenter supported this provision's restriction against
sex stereotyping in training materials for Title IX personnel, arguing
that while appropriate training can reduce bias, improper trainings can
leave biases unchecked or exacerbate underlying biases. The commenter
argued that numerous examples exist showing that recipients' training
documents given to adjudicators in university sexual misconduct
processes have demonstrated bias especially against respondents, making
it impossible for decision-makers to be impartial and unbiased.\1028\
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\1028\ Commenters asserted that as of 2014, Harvard Law School's
disciplinary board training contained slides to this effect and that
one Harvard Law School professor stated that these slides were
``100% aimed to convince [adjudicators] to believe complainants,
precisely when they seem unreliable and incoherent'' citing to Emily
Yoffe, The Bad Science Behind Campus Response to Sexual Assault, The
Atlantic (Sept. 8, 2017). Commenters further stated that at Ohio
State University, for instance, decision-makers were told that a
``victim centered approach can lead to safer campus communities.''
Doe v. Ohio State Univ., No. 2:15-CV-2830, 2016 WL 692547, at *3
(S.D. Ohio, Feb. 22, 2016). Commenters further stated that same Ohio
State University training guide, for example, told decision-makers
that ``[s]ex offenders are overwhelmingly white males.'' Id.; see
also Doe v. Univ. of Pa., 270 F. Supp. 3d 799, 823 (E.D. Pa. 2017).
---------------------------------------------------------------------------
Another commenter supported Sec. 106.45(b)(1)(iii) combined with
the other provisions in Sec. 106.45 because while nothing can
completely eliminate gender or racial bias from the system, bias can be
reduced by expanding the evidence considered by decision-makers, a
function served by a full investigation and hearings with cross-
examination. The commenter argued that decisions are most biased when
they rely on less evidence and more hunches because hunches are easily
tainted by subconscious racial or gender
[[Page 30250]]
bias.\1029\ The commenter asserted that the obligation of the law under
Title IX is to treat each person as an individual, not as a member of a
class subject to prejudgment and prejudice on the basis of sex, and
nowhere is the problem of sex bias more pronounced than in the area of
perception, prejudgment, and prejudice in the matter of incidences of
violence between members of the opposite sex. The commenter supported
the Department's proposed rules, including this provision, based on the
Department's authority and obligation to issue regulations that end the
discrimination based on sex that exists in Title IX programs
themselves.\1030\
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\1029\ In support of the proposition that most decisions after a
full trial are not based on using race as a proxy but rather on the
evidence at trial, resulting in racially fair decisions, while
racial bias is rampant in low-stakes, low-evidence decision making
where people make decisions on little evidence, the commenter cited
Stephen P. Klein, et al., Race and Imprisonment Decisions in
California, 247 Science 812 (1990). More than one commenter cited to
Driving While Black in Maryland, American Civil Liberties Union
(ACLU) (Feb. 2, 2010) https://www.aclu.org/cases/driving-while-black-maryland, for similar propositions.
\1030\ Commenters asserted that services for male victims of
opposite sex violence are nearly non-existent at educational
institutions and in society at large because of an ingrained ``man
as perpetrator/woman as victim'' stereotype, which stereotype has
always been false, shown by CDC data revealing the prevalence of
male victims of sexual violence: Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control, The
National Intimate Partner and Sexual Violence Survey (NISVS): 2015
Data Brief Tables 9, 11 (2018).
---------------------------------------------------------------------------
One commenter supported this provision but noted that the Supreme
Court has recognized that as a practical matter it is difficult if not
impossible for an adjudicator ``to free himself from the influence'' of
circumstances that would give rise to bias, and the private nature of
motives ``underscore the need for objective rules'' for determining
when an adjudicator is biased.\1031\ This commenter asserted recipients
thus need to have objective rules for determining bias. A few
commenters supporting this provision recommended that the Department,
or recipients on their own, establish a clear process or mechanism for
reporting conflicts of interest or demanding recusal for bias during
the investigative process.
---------------------------------------------------------------------------
\1031\ Commenters cited: Caperton v. A. T. Massey Coal Co., 556
U.S. 868, 883 (2009) (holding that a judge cannot hear a case
centered on the financial interests of someone who substantially
supported the judge's election campaign).
---------------------------------------------------------------------------
Several commenters supported this provision but urged the
Department to make the training materials referred to in Sec.
106.45(b)(1)(iii) publicly available because transparency is the most
effective means to eradicate the problems with biased Title IX
proceedings, which problems are often rooted in biased training
materials. These commenters argued that when recipients know that their
training materials are subject to scrutiny, recipients will be more
careful to ensure that Title IX personnel are being trained to be
impartial. One commenter asserted that a lot of training is conducted
via webinars and that public disclosure of training materials must
include audio and video of the training as well as documents or
slideshow presentations used during the training.
Discussion: The Department appreciates commenters' support for
Sec. 106.45(b)(1)(iii), and the commenters who provided feedback in
response to the Department's directed question as to whether this
provision adequately addresses training implicated under the proposed
rules. The Department agrees with commenters who noted that prohibiting
conflicts of interest and bias, including racial bias, on the part of
people administering a grievance process is an essential part of
providing both parties a fair process and increasing the accuracy and
reliability of determinations reached in grievance processes.
Recognizing that commenters recounted instances of experience with
perceived conflicts of interest and bias that resulted in unfair
treatment and biased outcomes, the Department believes that this
provision provides a necessary safeguard to improve the impartiality,
reliability, and legitimacy of Title IX proceedings.\1032\ The
Department agrees with a commenter who asserted that recipients should
have objective rules for determining when an adjudicator (or Title IX
Coordinator, investigator, or person who facilitates an informal
resolution process) is biased, and the Department leaves recipients
discretion to decide how best to implement the prohibition on conflicts
of interest and bias, including whether a recipient wishes to provide a
process for parties to assert claims of conflict of interest of bias
during the investigation. The Department notes that Sec. 106.45(b)(8)
in the final regulations requires recipients to allow both parties
equal right to appeal including on the basis that the Title IX
Coordinator, investigator, or decision-maker had a conflict of interest
or bias that affected the outcome. The Department is persuaded by the
numerous commenters who urged the Department to require training
materials to be available for public inspection, to create transparency
and better effectuate the requirements of Sec. 106.45(b)(1)(iii). The
final regulations impose that requirement in Sec. 106.45(b)(10).
---------------------------------------------------------------------------
\1032\ The 2001 Guidance at 21 contained a similar training
recommendation: ``Finally, the school must make sure that all
designated employees [referring to designated Title IX Coordinators]
have adequate training as to what conduct constitutes sexual
harassment and are able to explain how the grievance procedure
operates.''
---------------------------------------------------------------------------
Additionally, the Department will not tolerate discrimination on
the basis of race, color, or national origin, which is prohibited under
Title VI. If any recipient discriminates against any person involved in
a Title IX proceeding on the basis of that person's race, color, or
national origin, then the Department will address such discrimination
under Title VI and its implementing regulations, in addition to such
discrimination potentially constituting bias prohibited under Sec.
106.45(b)(1)(iii) of these final regulations.
Changes: The final regulations revise Sec. 106.45(b)(10)(i)(D) to
require that training materials referred to in Sec. 106.45(b)(1)(iii)
must be made publicly available on a recipient's website, or if the
recipient does not have a website such materials must be made available
upon request for inspection by members of the public.
Comments: Several commenters expressed skepticism that any
recipient employees can be objective, fair, unbiased, or free from
conflicts of interest because a recipient's employees share the
recipient's interest in protecting the recipient's reputation or
furthering a recipient's financial interests. Some commenters asserted
this leads to recipient employees being unwilling to treat complainants
fairly while others asserted this leads to recipient employees being
unwilling to treat respondents fairly. A few commenters asserted that
this problem of inherent conflicts of interest between recipient
employees and complainants means that the only way to avoid conflicts
of interest is to require recipients to use an external, impartial
arbiter or require investigations to be done by people unaffiliated
with any students in the school, and one commenter argued that because
all paid staff members are biased (in favor of the recipient), the
solution is to allow complainants and respondents to pick the persons
who run the grievance proceedings similar to jury selection. One
commenter suggested that to counter institutional bias, which the
commenter argued was on display in notorious cover-up situations at
prestigious universities where employees committed sexual abuse, the
proposed rules should specifically require training on conflicts of
interest caused by employees' misplaced loyalty to the recipient.
Another commenter stated that schools must be required to
[[Page 30251]]
purchase liability insurance covering exposure arising from the
handling of sexual harassment claims, to ensure that they do not have a
secret conflict of interest that might cause them to put a finger on
the scale one way or the other in the course of investigating or
adjudicating a Title IX complaint.
Several commenters indicated that this provision seems reasonable
but requested clarity as to what might in practice constitute a
conflict of interest under Sec. 106.45(b)(1)(iii), with one commenter
noting that this issue often arises when a school district hires their
legal counsel, insurance carrier, or risk pool to complete an
investigation or respond to a formal complaint. Another commenter
requested more information on what would constitute ``general bias''
for or against complainants or respondents under this provision,
expressing concern that without any framework for evaluating whether a
particular administrator is tainted by such bias this provision is
amorphous and will add confusion and grounds for attack at smaller
institutions where many student affairs administrators fill several
different roles. Another commenter asked for clarification that school
employees serving in the Title IX process should be presumed to be
unbiased notwithstanding having previously investigated a matter
involving one or more of particular parties, or else this provision
could be quite costly by requiring a school district to hire outside
investigators every time an investigator deals with a party more than
once.
Several commenters recommended countering inherent institutional
conflicts of interest on the part of recipient employees by revising
the final regulations to avoid any commingling of administrative and
adjudicative roles. Several commenters offered the specific
recommendation that the Title IX Coordinator must not be an employment
supervisor of the decision-maker in the school's administrative
hierarchy and if investigators are independent contractors, the Title
IX Coordinator should not have a role in hiring or firing such
investigators. The same commenters recommended bolstering neutrality
and independence by removing the role of counseling complainants from
the office that coordinates the grievance process and requiring that
investigators have some degree of institutional independence. One
commenter asserted that if the Department intends to prohibit any
overlap in responsibilities among the Title IX Coordinator,
investigator, or decision-maker, the Department must make that
intention clear.
Many commenters requested clarification as to whether this
provision's prohibition against conflicts of interest and bias would be
interpreted to bar anyone from being a Title IX Coordinator,
investigator, or decision-maker if the person currently or in their
past has ever advocated for victims' rights or otherwise worked in
sexual violence prevention fields. Several commenters argued against
such an interpretation because individuals with that kind of experience
are often highly knowledgeable about sexual violence and able to serve
impartially, while several other commenters argued that Title IX-
related personnel are a self-selected group likely to include victim
advocates, self-identified victims, and those associated with women's
studies and thus come to a Title IX role with biases against men,
respondents, or both. One commenter asserted that while the choice of a
professor's field of study may or may not indicate bias, the fact that
a university relies on volunteers to staff Title IX hearing panels is
highly questionable because self-selection creates the likelihood that
those who ``want'' to serve on a Title IX hearing board have
preconceived ideas and views about whether male students are guilty,
regardless of the actual facts and circumstances, and thus the final
regulations should require the recipient to select decision-makers
based on random selection from its entire faculty and administrators.
One commenter shared an example of bias on the part of the single
administrator tasked with ruling on the commenter's client's appeal of
a responsibility finding, where the appeal decision-maker had recently
retweeted a survivor advocacy organization's tweet ``To survivors
everywhere, we believe you,'' yet the recipient overruled a bias
objection stating that nothing suggested that such a tweet meant the
appeal decision-maker was biased against that particular respondent.
This commenter proposed adding language explaining that a ``reasonable
person'' standard will be applied to determine bias, along with
cautionary language that a history of working or advocating on one side
or another of this issue might constitute bias. One commenter asserted
that Federal courts of appeal, including the Sixth Circuit, agree that
``being a feminist, being affiliated with a gender-studies program, or
researching sexual assault does not support a reasonable inference than
an individual is biased against men.'' \1033\ This commenter believed
that the proposed rules offered no clarity on whether the Department
would consider bias claims based on being a feminist or working in the
sexual assault field to be ``frivolous'' or would be taken seriously.
---------------------------------------------------------------------------
\1033\ Commenter cited: Doe v. Miami Univ., 882 F.3d 579, 593
fn. 6 (6th Cir. 2018).
---------------------------------------------------------------------------
Several commenters urged the Department to expand this provision to
prohibit ``perceived'' conflicts of interest or ``the appearance'' of
bias in line with standards that require judges not to have even the
appearance of bias or impropriety; other commenters urged the
Department to apply a presumption that campus decision-makers are free
of bias, noting that courts require proof that a conduct official had
an ``actual'' bias against the party because of the party's sex, and
the proposed rules seem to reverse this judicial presumption, opening
the door to numerous claims that undermine the presumption of honesty
in campus proceedings. One commenter suggested a more clearly defined
standard by specifying that Title IX personnel not have a personal bias
or prejudice for or against complainants or respondents generally, and
not have an interest, relationship, or other consideration that may
compromise or have the appearance of compromising the individual's
judgment with respect to any individual complainant or respondent. One
commenter suggested that this provision should require
``nondiscriminatory'' investigations and adjudications instead of being
``not biased.'' One commenter believed that student leaders should take
more responsibility for addressing sexual misconduct and might do a
better job than bureaucrats can; the commenter asserted that the final
regulations should not prohibit recipients from relying on students to
investigate and adjudicate sexual misconduct cases.
Discussion: The Department understands commenters' concerns that
the final regulations work within a framework where a recipient's own
employees are permitted to serve as Title IX personnel,\1034\ and the
potential conflicts of interest this creates. The final regulations
leave recipients flexibility to use their own employees, or to
outsource Title IX investigation and adjudication functions, and the
Department encourages recipients to pursue alternatives to the inherent
difficulties that arise when a recipient's own employees are expected
to perform these functions free from conflicts of
[[Page 30252]]
interest and bias. The Department notes that several commenters
favorably described regional center models that could involve
recipients coordinating with each other to outsource Title IX grievance
proceedings to experts free from potential conflicts of interest
stemming from affiliation with the recipient. The Department declines
to require recipients to use outside, unaffiliated Title IX personnel
because the Department does not conclude that such prescription is
necessary to effectuate the purposes of the final regulations; although
recipients may face challenges with respect to ensuring that personnel
serve free from conflicts of interest and bias, recipients can comply
with the final regulations by using the recipient's own employees.
Unless prescription is necessary to achieve compliance with the final
regulations, the Department does not wish to interfere with recipients'
discretion to conduct a recipient's own internal, administrative
affairs. The Department is also sensitive to the reality that
prescriptions regarding employment relationships likely will result in
many recipients being compelled to hire additional personnel in order
to comply with these final regulations, and the Department wishes to
prescribe only those measures necessary for compliance, without
unnecessarily diverting recipients' resources into hiring personnel and
away from other priorities important to recipients and the students
they serve. For these reasons, the Department declines to define
certain employment relationships or administrative hierarchy
arrangements as per se prohibited conflicts of interest under Sec.
106.45(b)(1)(iii).\1035\ The Department is cognizant that the
Department's authority under Title IX extends to regulation of
recipients themselves, and not to the individual personnel serving as
Title IX Coordinators, investigators, decision-makers, or persons who
facilitate an informal resolution process. Thus, the Department will
hold a recipient accountable for the end result of using Title IX
personnel free from conflicts of interest and bias, regardless of the
employment or supervisory relationships among various Title IX
personnel. To the extent that recipients wish to adopt best practices
to better ensure that conflicts of interest do not cause violations of
the final regulations, recipients have discretion to adopt practices
suggested by commenters, such as ensuring that investigators have
institutional independence or deciding that Title IX Coordinators
should have no role in the hiring or firing of investigators.
---------------------------------------------------------------------------
\1034\ References in this preamble to ``Title IX personnel''
mean Title IX Coordinators, investigators, decision-makers, and
persons who facilitate informal resolution processes.
\1035\ Although the decision-maker must be different from any
individual serving as a Title IX Coordinator or investigator,
pursuant to Sec. 106.45(b)(7)(i), the final regulations do not
preclude a Title IX Coordinator from also serving as the
investigator, and the final regulations do not prescribe any
particular administrative ``chain of reporting'' restrictions or
declare any such administrative arrangements to be per se conflicts
of interest prohibited under Sec. 106.45(b)(1)(iii).
---------------------------------------------------------------------------
For similar reasons, the Department declines to state whether
particular professional experiences or affiliations do or do not
constitute per se violations of Sec. 106.45(b)(1)(iii). The Department
acknowledges the concerns expressed both by commenters concerned that
certain professional qualifications (e.g., a history of working in the
field of sexual violence) may indicate bias, and by commenters
concerned that excluding certain professionals out of fear of bias
would improperly exclude experienced, knowledgeable individuals who are
capable of serving impartially. Whether bias exists requires
examination of the particular facts of a situation and the Department
encourages recipients to apply an objective (whether a reasonable
person would believe bias exists), common sense approach to evaluating
whether a particular person serving in a Title IX role is biased,
exercising caution not to apply generalizations that might unreasonably
conclude that bias exists (for example, assuming that all self-
professed feminists, or self-described survivors, are biased against
men, or that a male is incapable of being sensitive to women, or that
prior work as a victim advocate, or as a defense attorney, renders the
person biased for or against complainants or respondents), bearing in
mind that the very training required by Sec. 106.45(b)(1)(iii) is
intended to provide Title IX personnel with the tools needed to serve
impartially and without bias such that the prior professional
experience of a person whom a recipient would like to have in a Title
IX role need not disqualify the person from obtaining the requisite
training to serve impartially in a Title IX role.
In response to commenters' concerns that the prohibition against
conflicts of interest and bias is unclear, the Department revises this
provision to mandate training in ``how to serve impartially, including
by avoiding prejudgment of the facts at issue, conflicts of interest,
and bias'' in place of the proposed language for training to ``protect
the safety of students, ensure due process protections for all parties,
and promote accountability.'' This shift in language is intended to
reinforce that recipients have significant control, and flexibility, to
prevent conflicts of interest and bias by carefully selecting training
content focused on impartiality and avoiding prejudgment of the facts
at issue, conflicts of interest, and bias.
The Department disagrees with the commenter who suggested replacing
``bias'' in this provision with ``non-discrimination.'' Based on
anecdotal evidence from commenters asserting specific instances that
ostensibly reveal a recipient's Title IX personnel exhibiting bias for
or against men, women, complainants, or respondents, the Department
believes that bias, especially sex-based bias, is a particular risk in
Title IX proceedings and aims specifically to reduce and prevent bias
from influencing how a recipient responds to sexual harassment
including through required training for Title IX personnel.\1036\
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\1036\ E.g., Justin D. Levinson, Forgotten Racial Equality:
Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L. J. 345
(2007) (arguing for diversity training); Jennifer A. Richeson &
Richard J. Nussbaum, The Impact of Multiculturalism Versus Color-
Blindness on Racial Bias, 40 J. of Experimental Social Psychol. 417
(2004) (explaining how diversity training can lead to less implicit
bias).
---------------------------------------------------------------------------
The Department declines to narrow or widen this provision by
specifying whether conflicts of interest or bias must be ``actual'' or
``perceived,'' and declines to adopt an ``appearance of bias''
standard. As noted above, the topic of sexual harassment inherently
involves issues revolving around sex and sexual dynamics such that a
standard of ``appearance of'' or ``perceived'' bias might lead to
conclusions that most people are biased in one direction or another by
virtue of being male, being female, supporting women's rights or
supporting men's rights, or having had personal, negative experiences
with men or with women. The Department believes that keeping this
provision focused on ``bias'' paired with an expectation of
impartiality helps appropriately focus on bias that impedes
impartiality. The Department cautions parties and recipients from
concluding bias, or possible bias, based solely on the outcomes of
grievance processes decided under the final regulations; for example,
the mere fact that a certain number of outcomes result in
determinations of responsibility, or non-responsibility, does not
necessarily indicate or imply bias on the part of Title IX personnel.
The entire purpose of the Sec. 106.45 grievance process is to increase
the reliability and accuracy of outcomes in Title IX proceedings, and
the number of particular outcomes, alone, thus does not raise an
inference of bias because the final regulations
[[Page 30253]]
help ensure that each individual case is decided on its merits.
The Department notes that the final regulations do not preclude a
recipient from allowing student leaders to serve in Title IX roles so
long as the recipient can meet all requirements in Sec. 106.45 and
these final regulations,\1037\ and leaves it to a recipient's judgment
to decide under what circumstances, if any, a recipient wants to
involve student leaders in Title IX roles.
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\1037\ For example, Sec. 106.8(a) specifies that the Title IX
Coordinator must be an ``employee'' designated and authorized by the
recipient to coordinate the recipient's efforts to comply with Title
IX obligations. No such requirement of employee status applies to,
for instance, serving as a decision-maker on a hearing panel.
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Changes: Section 106.45(b)(1)(iii) is revised to specify that the
required training include ``how to serve impartially, including by
avoiding prejudgment of the facts at issue, conflicts of interest, and
bias'' in place of the proposed language ``that protect the safety of
students, ensure due process protections for all parties, and promote
accountability.'' \1038\
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\1038\ Because revised Sec. 106.45(b)(8) now requires
recipients to offer appeals, Sec. 106.45(b)(1)(iii) has also been
revised to include training on conducting appeals.
---------------------------------------------------------------------------
Comments: One commenter asked whether the training on the
definition of sexual harassment referenced in Sec. 106.45(b)(1)(iii)
means the definition in Sec. 106.30, a definition used by the
recipient (that might be broader than in Sec. 106.30), or both. One
commenter wondered why this provision removes vital sexual harassment
training of school personnel but gave no explanation for drawing this
conclusion. Several commenters noted that Sec. 106.45(b)(1)(iii) does
not state the frequency for the required training and wondered if it
must be annual, while several others requested more clarity about what
would be considered adequate training especially for a decision-maker
expected to conduct a live hearing with cross-examination, and further
explanation of what kinds of training materials foster impartial
determinations. One commenter stated that Sec. 106.45(b)(1)(iii) does
not provide for a standardized level of training or offer financial
assistance for training personnel. One commenter agreed with the
proposed rules' effort to diagnose severe training gaps in the Title IX
system but because this provision mandates training ``conceptually''
without specifying what the training must include, the commenter
asserted that the inevitable result will be more Dear Colleague Letters
and guidance from the Department, which the Department should avoid by
taking time to include more specific training requirements in these
final regulations.
Many commenters expressed views about this provision's prohibition
against the use of ``sex stereotypes'' in training materials. Some
commenters urged the Department to include a definition of ``sex
stereotypes,'' asserting that without clarity this provision is a legal
morass exposing recipients to liability. One commenter asserted that
``bias'' lacks a definitive legal meaning and should be replaced by
``non-discriminatory.'' Some commenters argued that without a
definition, this provision could be interpreted to forbid recipients
from relying on research and evidence-based practices that instruct
personnel to reject notions of ``regret sex'' and women lying about
sexual assault. Other commenters requested clarity that stereotypes of
men as sexually aggressive or likely to perpetrate sexual assault and
references to ``toxic masculinity'' are prohibited under this
provision. One commenter argued that the First Amendment likely
prohibits the Department from dictating that training materials be free
from sex stereotypes or that if the Department no longer perceives the
First Amendment as a barrier to the Federal government prohibiting sex
stereotyping materials then the Department should repeal 34 CFR 106.42
and replace it with a prohibition against reliance on sex stereotyping
that extends to all training or educational materials used by a
recipient for any purpose. This commenter also requested clarification
as to whether Sec. 106.45(b)(1)(iii) would prohibit reliance on peer-
reviewed journal articles that state, for example,\1039\ that trauma
victims often recall only some vivid details from their ordeal and that
memories may be impaired with amnesia or gaps or contain false details
following extreme cases of negative emotions, such as rape trauma.
Another commenter expressed concern that this provision might result in
information provided by sexual violence experts being forbidden,
resulting in respondents' lawyers' opinions replacing peer-reviewed,
scientific data. One commenter urged the Department to interpret this
provision to require training around bias that exists against
complainants and to clarify that the ``Start by Believing'' approach
promoted by End Violence Against Women International should be part of
these training requirements because that approach trains investigators
to start by believing the survivor to avoid incorporating personal bias
and victim-blaming myths that might bias the investigation against the
survivor. The commenter asserted that understanding the dynamics of
sexual trauma is necessary in order to treat both complainants and
respondents fairly without bias. Another commenter asserted that
``start by believing'' is not appropriate for investigations but is
appropriate for counseling and thus, the final regulations should
require that for counseling purposes personnel must ``start by
believing'' a complainant or a respondent seeking counseling.
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\1039\ Commenters cited: Katrin Hohl & Martin Conway, Memory as
Evidence: How Normal Features of Victim Memory Lead to the Attrition
of Rape Complaints, 17 Criminology & Criminal Justice 3 (2017).
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One commenter suggested this provision be modified to require
training to have a working understanding of impartiality. One commenter
contended that training materials should never be allowed to refer to
the AAU/Westat Report \1040\ for the statistic that one-in-four women
are raped on college campuses because there are so many methodological
problems with that report that using it constitutes sex discrimination
under Title IX. One commenter argued that Sec. 106.45(b)(1)(iii) must
not be applied to exclude the application of proven profiles and
indicators of certain predictive behaviors because that is a tried and
tested practice in professional law enforcement and should be utilized
according to best practices of trained investigators in any quest for
the truth.
---------------------------------------------------------------------------
\1040\ Commenters cited: The Association of American
Universities, Report on the AAU Campus Climate Survey on Sexual
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------
Discussion: The Department appreciates a commenter asking whether
the training on the definition of sexual harassment in this provision
was intended to refer to the definition of sexual harassment in Sec.
106.30; to clarify that was the intent of this provision, Sec.
106.45(b)(1)(iii) has been revised to so state. The Department
disagrees that this provision removes vital training regarding a
recipient's responses to sexual harassment; rather, this provision
prescribes mandatory training for Title IX personnel that promotes the
purpose of a Title IX process and compliance with these final
regulations, and leaves recipients free to adopt additional education
and training content that a recipient believes serves the needs of the
recipient's community. Commenters correctly noted that the final
regulations do not impose an annual or other frequency condition on the
mandatory training required in Sec. 106.45(b)(1)(iii). The Department
interprets this provision as requiring that any Title IX
[[Page 30254]]
Coordinator, investigator, decision-maker, or person who facilitates an
informal resolution process will, when serving in such a role, be
trained to serve in that role. The Department wishes to leave
recipients flexibility to decide to what extent additional training is
needed to ensure that Title IX personnel are trained when they serve
\1041\ so that recipients efficiently allocate their resources among
Title IX compliance obligations and other important needs of their
educational communities. The Department disagrees with a commenter
concerned that failing to be more prescriptive about the content of
training in these final regulations necessarily will result in the
Department issuing Dear Colleague Letters imposing training content
requirements in the future. The Department is committed to imposing
legally binding requirements by following applicable rulemaking
processes.
---------------------------------------------------------------------------
\1041\ Some commenters questioned whether advisors provided to a
party by a postsecondary institution recipient pursuant to Sec.
106.45(b)(6)(i) must be free from conflicts of interest and bias and
must be trained. The final regulations impose no prohibition of
conflict of interest or bias for such advisors, nor any training
requirement for such advisors, in order to leave recipients as much
flexibility as possible to comply with the requirement to provide
those advisors. The Department believes that advisors in such a role
do not need to be unbiased or lack conflicts of interest precisely
because the role of such advisor is to conduct cross-examination on
behalf of one party, and recipients can determine to what extent a
recipient wishes to provide training for advisors whom a recipient
may need to provide to a party to conduct cross-examination.
---------------------------------------------------------------------------
The Department is persuaded by commenters' concerns that it is
beneficial for Sec. 106.45(b)(1)(iii) to emphasize the need for
decision-makers to receive training in how to conduct hearings, and we
have revised this provision to specify that decision-makers receive
training in how to conduct a grievance process including how to use
technology that will be used by a recipient to conduct a live hearing,
and on issues of the relevance of questions and evidence (including how
to determine the relevance or irrelevance of a complainant's prior
sexual history), and that investigators receive training on issues of
relevance in order to prepare an investigative report that fairly
summarizes relevant evidence.
The Department appreciates the many commenters who requested a
definition of ``sex stereotypes'' and asked that such a definition
include, or exclude, particular generalizations and notions about women
or about men. For reasons similar to those discussed above with respect
to defining ``bias'' on the part of Title IX personnel, the Department
declines to list or define what notions do or do not constitute sex
stereotypes on which training materials must not rely. The Department
disagrees that a broad prohibition against sex stereotypes is a legal
morass exposing recipients to liability, any more than Title IX's broad
prohibition against ``sex discrimination'' does so. It is not feasible
to catalog the variety of notions expressing generalizations and
stereotypes about the sexes that might constitute sex stereotypes, and
the Department's interest in ensuring impartial Title IX proceedings
that avoid prejudgment of the facts at issue necessitates a broad
prohibition on sex stereotypes so that decisions are made on the basis
of individualized facts and not on stereotypical notions of what
``men'' or ``women'' do or do not do. To reinforce this necessity, the
final regulations use ``must'' instead of ``may'' to state that
training materials ``must'' not rely on sex stereotypes.
Contrary to the concerns of some commenters, a prohibition against
reliance on sex stereotypes does not forbid training content that
references evidence-based information or peer-reviewed scientific
research into sexual violence dynamics, including the impact of trauma
on sexual assault victims. Rather, Sec. 106.45(b)(1)(iii) cautions
recipients not to use training materials that ``rely'' on sex
stereotypes in training Title IX personnel on how to serve in those
roles impartially and without prejudgment of the facts at issue,
meaning that research and data concerning sexual violence dynamics may
be valuable and useful, but cannot be relied on to apply
generalizations to particular allegations of sexual harassment.
Commenters provided numerous examples of training materials containing
phrases that may, or may not, violate the final regulations, but a
fact-specific evaluation of the training materials and their use by the
recipient would be needed to reach a conclusion regarding whether such
materials comply with Sec. 106.45(b)(1)(iii). We have revised Sec.
106.45(b)(10) to require recipients to post on a recipient's website
the training materials referred to in Sec. 106.45(b)(1)(iii) so that a
recipient's approach to training Title IX personnel may be
transparently viewed by the recipient's educational community and the
public, including for the purpose of holding a recipient accountable
for using training materials that comply with these final regulations.
The Department does not believe that placing parameters around the
training materials specifically needed to comply with Title IX
regulations violates the First Amendment rights of recipients because
the final regulations do not interfere with the right of recipients to
control the recipient's own curricula and academic instruction
materials. The Department is not proactively scouring recipients'
curricula to spot instances of sex stereotyping; rather, the Department
is placing reasonable conditions on materials specifically used by
recipients to carry out recipients' obligations under these final
regulations.
For reasons explained above, the Department does not wish to be
more prescriptive than necessary to achieve the purposes of these final
regulations, and respects the discretion of recipients to choose how
best to serve the needs of each recipient's community with respect to
the content of training provided to Title IX personnel so long as the
training meets the requirements in these final regulations. Thus, the
Department declines to require recipients to adopt the ``Start by
Believing'' approach promoted by End Violence Against Women, and
cautions that a training approach that encourages Title IX personnel to
``believe'' one party or the other would fail to comply with the
requirement that Title IX personnel be trained to serve impartially,
and violate Sec. 106.45(b)(1)(ii) precluding credibility
determinations based on a party's status as a complainant or
respondent. The Department takes no position on whether ``start by
believing'' should be an approach adopted by non-Title IX personnel
affiliated with a recipient, such as counselors who provide services to
complainants or respondents. The Department wishes to emphasize that
parties should be treated with equal dignity and respect by Title IX
personnel, but doing so does not mean that either party is
automatically ``believed.'' The credibility of any party, as well as
ultimate conclusions about responsibility for sexual harassment, must
not be prejudged and must be based on objective evaluation of the
relevant evidence in a particular case; for this reason, the Department
cautions against training materials that promote the application of
``profiles'' or ``predictive behaviors'' to particular cases. The
Department declines to predetermine whether particular studies or
reports do or do not violate Sec. 106.45(b)(1)(iii) or opine on the
validity of particular reports, but encourages recipients to examine
the information utilized in training of Title IX personnel to ensure
compliance with this provision.
Changes: Section 106.45(b)(1)(iii) clarifies that the training on
the definition of sexual harassment means
[[Page 30255]]
the definition in Sec. 106.30,\1042\ requires Title IX personnel to be
trained on how to conduct a grievance process, requires investigators
and decision-makers to be trained on issues of relevance (including
when questions and evidence about a complainant's sexual predisposition
or prior sexual behavior are not relevant), requires decision-makers to
be trained on technology to be used at any live hearing, and changes
``may'' to ``must'' in the directive that training materials not rely
on sex stereotypes.
---------------------------------------------------------------------------
\1042\ As discussed in the ``Section 106.44(a) `education
program or activity' '' subsection of the ``Section 106.44
Recipient's Response to Sexual Harassment, Generally'' section of
this preamble, the training requirements for Title IX personnel in
Sec. 106.45(b)(1)(iii) now also include training on the scope of
the recipient's education program or activity.
---------------------------------------------------------------------------
Comments: Several commenters suggested that Sec. 106.45(b)(1)(iii)
be expanded to include training for Title IX personnel on a variety of
subjects. At least one commenter urged the Department to adopt the
training language from the withdrawn 2014 Q&A.\1043\ Without
referencing the 2014 Q&A a few commenters suggested that training
address similar topics such as: The neurobiology of trauma,
counterintuitive responses to sexual violence, false reporting,
barriers to reporting, incapacitation versus intoxication and blackout
behaviors, assessing credibility in the context of trauma, Title IX
compliance as it intersects with the Clery Act, FERPA, child protective
services legislation, disability laws, and other laws that may
intersect with Title IX, healthy sexuality and consent including
affirmative consent, risk factors for sexual violence victimization,
bystander intervention, rates of prevalence, addressing bias using an
anti-oppression framework, effective interviewing of survivors such as
forensic experiential models, cultural competency to address specific
issues that affect marginalized survivors (e.g., LGBTQ individuals,
persons with disabilities, persons of color, or persons who are
undocumented or economically disadvantaged).
---------------------------------------------------------------------------
\1043\ Commenters cited: 2014 Q&A at 40 (``Training should
include information on working with and interviewing persons
subjected to sexual violence; information on particular types of
conduct that would constitute sexual violence, including same-sex
sexual violence; the proper standard of review for sexual violence
complaints (preponderance of the evidence standard); information on
consent and the role drugs or alcohol can play in the ability to
consent; the importance of accountability for individuals found to
have committed sexual violence; the need for remedial actions for
the perpetrator, complainant, and school community; how to determine
credibility; how to evaluate evidence and weigh it in an impartial
manner; how to conduct investigations; confidentiality; the effects
of trauma, including neurobiological change; and cultural awareness
training regarding how sexual violence may impact students
differently depending on their cultural backgrounds.'').
---------------------------------------------------------------------------
One commenter stated that training should ensure that Title IX
personnel are first ``mentored'' by someone with experience before
working directly with survivors. One commenter suggested the Department
create an aspirational list of training components. One commenter asked
the Department to define ``training materials'' as limited to material
the recipient itself designates as essential for performing the
applicable Title IX role, so as not to sweep up a range of professional
continuing education presentations into the ambit of Sec.
106.45(b)(1)(iii) just because such professional training seminars
might mention something relevant to Title IX.
Discussion: For the reasons explained above, the Department has
determined that Sec. 106.45(b)(1)(iii) in the final regulations
strikes the appropriate balance between mandating training topics the
Department believe are necessary to promote a recipient's compliance
with these final regulations while leaving as much flexibility as
possible to recipients to choose the content and substance of training
topics in addition to the topics mandated by this provision. Thus, the
Department declines to expand this provision to mandate that training
address the topics suggested by commenters. As discussed in this
preamble under the Sec. 106.44(a) ``education program or activity''
condition, the final regulations revise the training requirements in
Sec. 106.45(b)(1)(iii) to require training of Title IX personnel on
the ``scope of the recipient's education program or activity.'' The
Department makes this change in response to commenters concerned that
the ``education program or activity'' condition was misunderstood too
narrowly, for example as excluding all sexual harassment incidents that
occur off campus. This revision to the training requirements in Sec.
106.45(b)(1)(iii) helps to ensure that recipients do not inadvertently
fail to treat as Title IX matters sexual harassment incidents that
occur in the recipient's education program or activity. As explained
above in this section of the preamble, we have also revised this
provision to: Add training on appeals and informal resolution processes
in addition to hearings (as applicable); specify that Title IX
personnel must be trained on the definition of sexual harassment in
Sec. 106.30 and on how to serve impartially without prejudgment of the
facts at issue and how to avoid bias and conflicts of interest; specify
that investigators and decision-makers must be trained on issues of
relevance; and specify that decision-makers receive training on how to
use technology at live hearings. As explained below in this section of
the preamble, we also revise Sec. 106.45(b)(1)(iii) to include
``person who facilitates an informal resolution process'' to the list
of Title IX personnel who must receive training.
The Department declines to require that Title IX personnel be
``mentored'' before working with parties, or to create an aspirational
list of training components. The Department's intent with respect to
this provision is to provide flexibility for each recipient to design
or select training components that best serve the recipient's unique
needs and educational environment, while prescribing those training
topics necessary for a recipient to comply with these final
regulations. The Department appreciates the commenter's request for
clarification that the training materials subject to these final
regulations should be only those training materials specifically
designated by the recipient as essential to performing Title IX
personnel functions. In order to reasonably gauge compliance with the
final regulations, the Department instead reserves the right to examine
training materials whether or not a recipient has not specifically
designated the material as essential to performing a Title IX role.
Changes: The final regulations revise this provision to include
training on the scope of a recipient's education program or activity;
add training on appeals and informal resolution processes in addition
to hearings (as applicable); specify that Title IX personnel must be
trained on the definition of sexual harassment in Sec. 106.30 and on
how to serve impartially without prejudgment of the facts at issue and
how to avoid bias and conflicts of interest; specify that investigators
and decision-makers must be trained on issues of relevance; specify
that decision-makers receive training on how to use technology at live
hearings; and add ``person who facilitates an informal resolution
process'' to the list of Title IX personnel who must receive training.
Comments: Many commenters expressed views about whether Sec.
106.45(b)(1)(iii) should be applied to include or exclude training
materials promoting ``trauma-informed'' practices, techniques, and
approaches. One commenter believed that using ``impartial'' instead of
``trauma-informed'' is offensive to rape victims, for whom trauma
necessitates a cognitive interview that takes the effects of trauma
into account, while another
[[Page 30256]]
commenter believed training must require trauma-informed best
practices. A few commenters believed that the provision should address
the use of trauma-informed theories by cautioning against misuse of
victim-centered approaches for any purpose other than interviewing or
counseling; these commenters distinguished between remaining
``impartial,'' one the one hand, while still using trauma-informed
methods when questioning a complainant so that the investigator does
not expect a trauma victim to provide details in chronological order,
on the other hand. Several commenters asserted that trauma-informed and
believe-the-victim approaches must be prohibited in the interview
process because those approaches compromise objectivity, create
presumptions of guilt, and result in exclusion of relevant (often
exculpatory) evidence. At least one commenter suggested that FETI
(forensic experimental trauma interview) techniques should be required.
One commenter stated that several states including New York,
California, and Illinois mandate trauma-informed training \1044\ for
campus officials who respond to sexual assault and asserted that the
proposed rules are unclear about whether the Department's position is
that trauma-informed practices constitute a form of sex
discrimination,\1045\ thus inviting further litigation on this issue.
---------------------------------------------------------------------------
\1044\ Commenters cited a white paper by Jeffrey J. Nolan,
Promoting Fairness in Trauma-Informed Investigation Training, NACUA
Notes, vol. 16, no. 5, p. 3 (Feb. 8, 2018), now updated as: Jeffrey
J. Nolan, Fair, Equitable Trauma-Informed Investigation Training
(Holland & Knight updated July 19, 2019).
\1045\ The commenter asserted that Federal courts tend to reject
this proposition, citing for example Doe v. Univ. of Or., No. 6:17-
CV-01103, 2018 WL 1474531 (D. Or. Mar. 26, 2018).
---------------------------------------------------------------------------
Discussion: The Department understands from personal anecdotes and
research studies that sexual violence is a traumatic experience for
survivors. The Department is aware that the neurobiology of trauma and
the impact of trauma on a survivor's neurobiological functioning is a
developing field of study with application to the way in which
investigators of sexual violence offenses interact with victims in
criminal justice systems and campus sexual misconduct proceedings. The
Department appreciates the views of commenters urging that trauma-
informed practices be mandatory, and those urging that such practices
be forbidden, and the commenters noting that trauma-informed practices
are required in some States, and noting there is a difference between
applying such practices in different contexts (i.e., interview and
questioning techniques, providing counseling services, or when making
investigatory decisions about relevant evidence and credibility or
adjudicatory decisions about responsibility). For reasons explained
above, the Department believes that Sec. 106.45(b)(1)(iii)
appropriately forbids conflicts of interest and bias, mandates training
on topics necessary to promote recipients' compliance with these final
regulations (including how to serve impartially), and precludes
training materials that rely on sex stereotypes. Recipients have
flexibility to choose how to meet those requirements in a way that best
serves the needs, and reflects the values, of a recipient's community
including selecting best practices that exceed (though must be
consistent with) the legal requirements imposed by these final
regulations. The Department notes that although there is no fixed
definition of ``trauma-informed'' practices with respect to all the
contexts to which such practices may apply in an educational setting,
practitioners and experts believe that application of such practices is
possible--albeit challenging--to apply in a truly impartial, non-biased
manner.\1046\
---------------------------------------------------------------------------
\1046\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed
Investigation Training 14-15 (Holland & Knight updated July 19,
2019) (concluding that ``All parties can benefit if trauma-informed
training is provided in a manner that is fair, equitable, nuanced,
and adapted appropriately to the context of college and university
investigations and disciplinary proceedings, and that does `not rely
on sex stereotypes.' Given the complexity of these issues and the
importance of training as a matter of substance and potential
litigation risk, institutions should strive to ensure that their
training programs are truly fair and trauma-informed.'');
``Recommendations of the Post-SB 169 Working Group,'' 3 (Nov. 14,
2018) (report by a task force convened by former Governor of
California Jerry Brown to make recommendations about how California
institutions of higher education should address allegations of
sexual misconduct) (trauma-informed ``approaches have different
meanings in different contexts. Trauma-informed training should be
provided to investigators so they can avoid re-traumatizing
complainants during the investigation. This is distinct from a
trauma-informed approach to evaluating the testimony of parties or
witnesses. The use of trauma-informed approaches to evaluating
evidence can lead adjudicators to overlook significant
inconsistencies on the part of complainants in a manner that is
incompatible with due process protections for the respondent.
Investigators and adjudicators should consider and balance
noteworthy inconsistencies (rather than ignoring them altogether)
and must use approaches to trauma and memory that are well grounded
in current scientific findings.'').
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter suggested expanding the persons who must be
trained to include counselors, diversity and inclusion departments,
deans of students, ombudspersons, and restorative justice committees. A
few commenters suggested that training about Title IX rights and Title
IX procedures should be mandatory for all students and all staff,
including teachers and faculty so that everyone affiliated with a
recipient knows the definition of sexual harassment and the complaint
procedures. A few commenters noted that the proposed rules lacked any
training requirements for staff that work on informal resolution
processes and urged the Department to set minimum standards for
training of those individuals so that all students are served by
individuals with high levels of training whether they go through a
formal or informal process.
Discussion: The intent of Sec. 106.45(b)(1)(iii) is to ensure that
Title IX personnel directly involved in carrying out the recipient's
Title IX response duties are trained in a manner that promotes a
recipient's compliance with these final regulations. The Department
appreciates commenters suggesting that additional school personnel, or
students, need training about Title IX, but the Department leaves such
decisions to recipients' discretion. The Department appreciates
commenters who noted that the proposed rules contemplated the recipient
facilitating informal resolution processes yet omitted such a role from
the listed personnel who must receive training under Sec.
106.45(b)(1)(iii), resulting in parties interacting with well-trained
personnel during a formal process but perhaps with untrained personnel
during an informal process. The commenters' concerns are well-founded,
and the final regulations include ``any person who facilitates an
informal resolution process'' wherever reference had been made to
``Title IX Coordinators, investigators, and decision-makers.''
Changes: Section 106.45(b)(1)(iii) is revised to include ``any
person who facilitates an informal resolution process'' in addition to
Title IX Coordinators, investigators, and decision-makers, as a person
whom the recipient must ensure is free from conflicts of interest and
bias, and receives the training specified in this provision.
Comments: At least one commenter requested more information about
who is expected to provide the training required under Sec.
106.45(b)(1)(iii), for example whether training presenters must have
experience with administrative proceedings in order to provide
qualified training to others. One commenter with extensive experience
as a sexual assault investigator proposed that the Federal Law
Enforcement Training Center (FLETC) should be
[[Page 30257]]
mandated to create a Title IX focused training program to which
recipients would send Title IX investigators within a certain time
frame after being hired; the commenter stated that FLETC already has
instructors, resources, and qualified, experienced professionals that
provide accredited training to sexual assault investigators, so
expanding FLETC training to be specific to Title IX proceedings would
create consistent knowledge and best practices across all institutions.
Discussion: For reasons explained above, the Department believes
that the mandated training requirements in Sec. 106.45(b)(1)(iii) are
sufficient to effectuate the purposes of these final regulations,
without unduly restricting recipients' flexibility to design and select
training that best serves each recipient's unique needs. For similar
reasons, the Department declines to prescribe whether training
presenters must possess certain qualifications and will enforce Sec.
106.45(b)(1)(iii) based on whether a recipient trains Title IX
personnel in conformity with this provision rather than on the
qualifications or expertise of the trainers. The Department appreciates
the commenter's suggestion regarding FLETC creating a Title IX-specific
training program. While adoption of that suggestion is outside the
scope of these final regulations because it is not within the
Department's regulatory authority under Title IX to direct FLETC to
expand its programming,\1047\ the Department encourages recipients to
pursue training from sources that rely on qualified, experienced
professionals likely to result in best practices for effective,
impartial investigations. The Department does not certify, endorse, or
otherwise approve or disapprove of particular organizations (whether
for-profit or non-profit) or individuals that provide Title IX-related
training and consulting services to recipients. Whether or not a
recipient has complied with Sec. 106.45(b)(1)(iii) is not determined
by the source of the training materials or training presentations
utilized by a recipient.
---------------------------------------------------------------------------
\1047\ FLETC is part of the Department of Homeland Security.
U.S. Dep't. of Homeland Security, Federal Law Enforcement Training
Centers, https://www.fletc.gov/.
---------------------------------------------------------------------------
Changes: None.
Section 106.45(b)(1)(iv) Presumption of Non-Responsibility
Purpose of the Presumption
Comments: Many commenters supported Sec. 106.45(b)(1)(iv),
requiring a recipient's grievance process to apply a presumption that a
respondent is not responsible until conclusion of a grievance process
(referred to in this section as the ``presumption''), because such a
presumption means that recipients will adjudicate based on evidence
rather than beliefs or assumptions. Commenters referred to the
presumption as the equivalent of a ``presumption of innocence'' which,
commenters asserted, is crucial for determining the truth of what
happened when one party levies an accusation against another party.
Commenters shared personal experiences with campus Title IX proceedings
in which the commenters believed that the process unfairly placed the
respondent in a position of having to try to prove non-responsibility
rather than being treated as not responsible unless evidence proved
otherwise. Commenters who agreed with the presumption asserted that,
especially under a preponderance of the evidence standard, it is
important that an accused student be presumed innocent, to stress for
decision-makers that if they believe the complainant and respondent are
equally truthful, the required finding must be not-responsible.
Commenters asserted that lawsuits filed against universities by
respondents accused of sexual misconduct have revealed that
universities often do not presume the respondent innocent \1048\ and
that this may lead schools to place the burden of proof on
respondents.\1049\ Commenters asserted that Sec. 106.45(b)(1)(iv) will
clarify that respondents do not have the burden of proving their
innocence.
---------------------------------------------------------------------------
\1048\ Commenters cited: Doe v. Univ. of Cincinnati, aff'd sub
nom. Doe v. Cummins, 662 F. App'x 437, 447 (6th Cir. 2016).
\1049\ Commenters cited: Wells v. Xavier Univ., 7 F. Supp. 3d
746 (S.D. Ohio 2014).
---------------------------------------------------------------------------
Several commenters who supported the presumption cited an article
arguing that believing complainants is the beginning and the end of a
search for the truth.\1050\ Several commenters asserted that the mantra
of ``Believe Survivors'' encourages a presumption of guilt against
respondents. Other commenters opined that a person can both believe
complainants and presume the respondent is innocent during an
investigation.
---------------------------------------------------------------------------
\1050\ Commenters cited: Emily Yoffe, The problem with
#BelieveSurvivors, The Atlantic (Oct. 3, 2018).
---------------------------------------------------------------------------
Commenters argued that the presumption of non-responsibility is
essential to affording respondents an opportunity to defend themselves.
Commenters supportive of the presumption shared personal stories in
which they or their family members were respondents in Title IX
grievance hearings and as respondents and felt as though the recipient
placed the burden of proving innocence on the respondent's shoulders
and made it seem that the accusations had been prejudged as truthful;
others shared experiences of interim suspensions imposed prior to any
facts or evidence leading to a conclusion of ``guilt.'' Commenters
argued that it is imperative that accusations are not equated with
``guilt.'' One commenter described living in countries that were behind
the Iron Curtain, where to be accused was the same as to be proven
guilty without evidence.
Commenters who opposed the presumption argued that the purpose of
the presumption is to favor respondents over complainants. Commenters
asserted that the presumption is evidence of the Department's animus
towards complainants. Commenters asserted that the presumption codifies
a unique status for sexual harassment and assault complainants,
explicitly requiring that schools treat them with heightened
skepticism. Additionally, several commenters argued that the Department
proposed the presumption because the Department seeks to perpetuate the
myth of false reporting in Federal policy and desires to protect the
reputation and interests of the accused. Commenters argued that the
presumption gives special, greater rights to the respondent, creating a
procedural bias against complainants that violates complainants' rights
to an impartial grievance procedure under Title IX and the Clery Act.
Many commenters argued that the presumption of non-responsibility
is a presumption that the alleged harassment did not occur. Commenters
questioned how the recipient can adequately listen to the complainant
if the recipient is required to presume that no harassment occurred.
Commenters argued that the presumption creates a hostile environment
for complainants by implying that the complainant is dishonest.
Commenters argued that the presumption will increase negative social
reactions to complainants, such as minimization and victim-blaming, and
predicted that these negative reactions will create adverse health
effects for complainants including post-traumatic stress disorder
symptoms.
Commenters opposed the requirement in the proposed rules for the
recipient to expressly state the presumption of non-responsibility in
its first communication with the complainant, arguing that this
provision seems ``deliberately cruel'' towards complainants.
Commenters argued that the presumption would encourage schools to
ignore or punish historically
[[Page 30258]]
marginalized groups that report sexual harassment by implying such
complainants are ``lying'' about sexual harassment, and that
complainants will feel chilled from reporting out of belief that they
will be retaliated against (i.e., by being punished for ``lying'') when
they do report.\1051\
---------------------------------------------------------------------------
\1051\ Commenters cited, e.g., Tyler Kingkade, When Colleges
Threaten To Punish Students Who Report Sexual Violence, The
Huffington Post (Sept. 9, 2015).
---------------------------------------------------------------------------
Commenters asserted that in a criminal proceeding, there is an
imbalance of power between the accused person and the government
prosecuting the accused, and therefore the U.S. Constitution gives the
criminal defendant a presumption of innocence; commenters argued that
this dynamic is absent in a Title IX proceeding where the complainant
does not represent the power of the government prosecuting a criminal
defendant, and thus a Title IX respondent should not enjoy the
presumption given to a criminal defendant.
Discussion: The Department appreciates commenters' support for
Sec. 106.45(b)(1)(iv) and acknowledges the many commenters who shared
personal experiences as respondents in Title IX proceedings where the
investigation process made the commenter feel like the burden was on
the respondent to prove non-responsibility rather than being presumed
not responsible unless evidence showed otherwise.
The Department disagrees with commenters who believed that the
purpose of the presumption of non-responsibility is to favor
respondents at the expense of complainants or that a presumption of
non-responsibility demonstrates animus or hostility toward
complainants. The Department does not seek to ``perpetuate the myth of
false reporting in Federal policy,'' nor does it desire ``to protect
the reputation and interests of the accused'' at the expense of victims
as some commenters claimed. To the contrary, we seek to establish a
fair grievance process for all parties, and the presumption does not
affect or diminish the strong procedural rights granted to complainants
throughout the grievance process.
The Department acknowledges that these final regulations apply only
to allegations of Title IX sexual harassment, and as such these final
regulations do not impose a presumption of non-responsibility in other
types of student misconduct proceedings. This does not indicate that
the allegations in formal complaints of sexual harassment are more
suspect or warrant more skepticism than allegations of other types of
misconduct. The Department believes that the notion of presuming a
student not responsible until facts show otherwise represents a basic
concept of fairness, but these regulations address only recipients'
responses to Title IX sexual harassment and do not dictate whether a
similar presumption should be applied to other forms of student
misconduct.
While the Department acknowledges that Title IX proceedings are not
criminal in nature and do not require application of constitutional
protections granted to criminal defendants, the Department believes
that a presumption of non-responsibility is critical to ensuring a fair
proceeding in the Title IX sexual harassment context, rooted in the
same principle that underlies the constitutional presumption of
innocence afforded to criminal defendants.\1052\ In the noncriminal
context of a Title IX grievance process, the presumption reinforces the
final regulations' prohibition against a recipient treating a
respondent as responsible until conclusion of a grievance process
\1053\ and reinforces correct application of the standard of evidence
selected by the recipient for use in the recipient's Title IX sexual
harassment grievance process. These aspects of the presumption improve
the fairness of the process and increase party and public confidence in
such outcomes,\1054\ thereby leading to greater compliance with rules
against sexual misconduct.\1055\ Without expressly stating a
presumption of non-responsibility, a perception that recipients may
prejudge respondents as responsible will continue to negatively affect
party and public confidence in Title IX proceedings.\1056\
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\1052\ See Fran[ccedil]ois Quintard-Mor[eacute]nas, The
Presumption of Innocence in the French and Anglo-American Legal
Traditions, 58 Am. J. of Comparative L. 107, 110 (2010) (``Because
one can be accused of a crime without being a criminal, an
elementary principle of justice requires that plaintiffs prove their
allegations and that the accused be considered innocent in the
interval between accusation and judgment.'').
\1053\ Sections 106.44(a), 106.45(b)(1)(i) (recipients may not
impose disciplinary sanctions on a respondent, or otherwise take
actions against the respondent that do not constitute supportive
measures as defined in Sec. 106.30, without following a grievance
process that complies with Sec. 106.45). The final regulations
expressly allow exceptions to this principle, where in certain
circumstances a respondent may be treated adversely even though
responsibility has not been determined at the conclusion of a
grievance process. See Sec. 106.30 (defining ``supportive
measures'' under which a supportive measure must not ``unreasonably
burden'' the other party, so reasonably burdening a respondent to
accomplish the aim of a supportive measure is permissible); Sec.
106.44(c) (a respondent may be removed from education programs or
activities where the respondent poses an immediate threat to the
physical health or safety of one or more individuals, and while a
post-removal opportunity to challenge the removal must be given to
the respondent, such an emergency removal may occur prior to
conclusion of a grievance process or where no grievance process is
pending at all); Sec. 106.44(d) (allowing a recipient to place a
(non-student) employee on administrative leaving while an
investigation under Sec. 106.45 is pending). The Department notes
that in an essay cited by commenters, the author criticizes the
presumption of non-responsibility in the NPRM, arguing that if the
presumption is intended only to mean that the burden of proof
remains on the recipient (and not on the respondent) then the
presumption is ``unobjectionable as a matter of substance, although
a seeming invitation to confusion'' because recipients may wrongly
believe that a presumption of non-responsibility implies that the
recipient must apply the criminal burden of proof (beyond a
reasonable doubt). Michael C. Dorf, What Does a Presumption of Non-
Responsibility Mean in a Civil Context, Dorf On Law (Nov. 28, 2018),
http://www.dorfonlaw.org/2018/11/what-does-presumption-of-non.html.
The author recognized that the second purpose of the presumption
seemed to be treating the respondent as not responsible throughout a
grievance process and believed that to be ``quite a bad idea''
because in daily life we make decisions based on someone being
accused of a crime even before a conviction. The author correctly
noted that one purpose of the presumption is to reinforce that the
burden of proof remains on the recipient and not on the respondent
(or complainant). The Department clarifies that contrary to the
author's concerns, and for reasons discussed in the ``Section
106.45(b)(7)(i) Standard of Evidence and Directed Question 6''
subsection of the ``Determinations Regarding Responsibility''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble, recipients may not apply the
criminal standard of beyond a reasonable doubt. Further, while the
author of that essay correctly identified a second purpose of the
presumption as ensuring that recipients do not treat the respondent
as responsible until the respondent is proved responsible, as
explained above in this footnote that principle is subject to
exceptions.
\1054\ Rinat Kitai, Presuming Innocence, 55 Oklahoma L. Rev.
257, 272 (2002) (the ``presumption of innocence is based mainly on
grounds of public policy relating to political morality and human
dignity. The presumption of innocence is a normative principle,
directing state authorities as to the proper way of treating a
person who has not yet been convicted. This principle is not tied to
empirical data about the incidence of criminal offenses or the
probability of innocence in certain circumstances.''); Dale A.
Nance, Civility and the Burden of Proof, 17 Harv. J. of L. & Pub.
Pol'y 647, 689 (1994) (``we should not forget that the moral order
that the law endorses carries with it certain obligations concerning
its application, one of which is the obligation to presume
compliance with legal duties, at least to the extent they represent
a consensus about serious moral duties. . . . Even if that principle
has lost its constitutional luster, the very fact that it has
attained such status, off and on over the years, is evidence of the
weight the law accords it. A presumption of innocence applies quite
generally, though not of course with perfect uniformity, in both
civil and criminal cases.'') (emphasis added).
\1055\ E.g., Rebecca Holland-Blumoff, Fairness Beyond the
Adversary System: Procedural Justice Norms for Legal Negotiation, 85
Fordham L. Rev. 2081, 2084 (2017) (``A fair process provided by a
third party leads to higher perceptions of legitimacy; in turn,
legitimacy leads to increased compliance with the law'') (internal
citation omitted).
\1056\ For example, the Foundation for Individual Rights in
Education (FIRE) published a 2017 report, Spotlight on Due Process,
https://www.thefire.org/resources/spotlight/due-process-reports/due-process-report-2017/, finding that ``Nearly three-quarters (73.6%)
of America's top 53 universities do not even guarantee students that
they will be presumed innocent until proven guilty.'' The Department
recognizes that a presumption of non-liability does not formally
apply in Federal civil lawsuits the way that a presumption of
innocence applies to criminal defendants; however, civil court
procedures do generally place the burden of proof on the plaintiff
to prove the defendant's civil liability, which echoes the principle
that civil defendants generally are not liable until proved
otherwise.
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[[Page 30259]]
On the other hand, nothing about this presumption deprives
complainants of the robust procedural protections granted to both
parties under Sec. 106.45, or the protections granted only to
complainants in Sec. 106.44(a) (including the right to be offered
supportive measures with or without filing a formal complaint). The
presumption does not imply that the alleged harassment did not occur;
the presumption ensures that recipients do not take action against a
respondent as though the harassment occurred prior to the allegations
being proved,\1057\ and the final regulations require a recipient's
Title IX personnel to interact with both the complainant and respondent
in an impartial manner throughout the grievance process without
prejudgment of the facts at issue,\1058\ and without drawing inferences
about credibility based on a party's status as a complainant or
respondent.\1059\ The presumption therefore serves rather than
frustrates the goal of an impartial process. The Department expects
that a fair grievance process will lend greater legitimacy to the
resolution of complainants' allegations, which will improve the
environment for complainants rather than perpetuate a hostile
environment or increase negative social reactions to complainants, such
as disbelief and blame. The presumption of non-responsibility does not
interfere with a complainant's right under Sec. 106.44(a) to receive
supportive measures offered by the recipient; this obligation imposed
on recipients does not depend at all on waiting for evidence to show a
respondent's responsibility. Section 106.44(a) is intended to assure
complainants of a prompt, supportive response from their school,
college, or university notwithstanding the recipient's obligation not
to treat the respondent as responsible for sexual harassment until the
conclusion of a grievance process.
---------------------------------------------------------------------------
\1057\ Under Sec. 106.45(b)(9), a recipient may choose to
facilitate an informal resolution process (except as to allegations
that an employee sexually harassed a student) and an informal
resolution may result in the parties, and the recipient, agreeing on
a resolution of the allegations of a formal complaint that involves
punishing or disciplining a respondent. This result comports with
the prescription in Sec. 106.44(a) and Sec. 106.45(b)(1)(i) that a
recipient may not discipline a respondent without following a
grievance process that complies with Sec. 106.45, because Sec.
106.45 expressly authorizes a recipient to pursue an informal
resolution process (with the informed, written, voluntary consent of
both parties).
\1058\ Section 106.45(b)(1)(iii).
\1059\ Section 106.45(b)(1)(ii).
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While the recipient must include a statement of the presumption in
the initial written notice sent to both parties after a formal
complaint has been filed,\1060\ the Department does not believe that
this communication from the recipient is ``deliberately cruel'' to
complainants; rather, both parties benefit from understanding that the
purpose of a grievance process is to reach reliable decisions based on
evidence instead of equating allegations with the outcome, especially
where the recipient's own code of conduct penalizes a party for making
false statements during a grievance proceeding. The final regulations
place the burden of proof solely on a recipient \1061\--not on a
complainant or respondent--and therefore the presumption does not
operate to burden or disfavor a complainant. Under Sec. 106.44(a) and
the Sec. 106.30 definition of ``supportive measures,'' recipients must
offer complainants supportive measures designed to restore or preserve
complainants' equal educational access (with or without a grievance
process pending), and the final regulations' prohibition against a
recipient punishing a respondent without following a fair grievance
process, including application of a presumption of non-responsibility
until conclusion of the grievance process, does not diminish the
supportive, meaningful response that a recipient is obligated to offer
complainants.\1062\
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\1060\ Section 106.45(b)(2)(i)(B).
\1061\ Section 106.45(b)(5)(i).
\1062\ Nothing in the final regulations precludes a recipient
from continuing to provide supportive measures to assist any party
regardless of the outcome of a case.
---------------------------------------------------------------------------
The Department disagrees that the presumption would encourage
schools to ignore or punish historically marginalized groups that
report sexual harassment, for ``lying'' about it. The Department
requires a recipient to respond promptly to actual knowledge of sexual
harassment in its education program or activity against a person in the
United States, including by offering supportive measures to the
complainant. Thus, ignoring sexual harassment violates these final
regulations and places the recipient's Federal funding in jeopardy. The
presumption does not imply that a respondent is truthful or that a
complainant is lying, and a recipient cannot use the presumption as an
excuse not to respond to a complainant as required under Sec.
106.44(a), or not to objectively evaluate all relevant evidence in
reaching a determination regarding responsibility. Finally, Sec.
106.71(b)(2) cautions recipients that it may constitute retaliation to
punish a complainant (or any party) for making false statements unless
the recipient determines that the party made materially false
statements in bad faith and that determination is not based solely on
the outcome of the case.
The Department acknowledges that Title IX grievance processes are
very different from criminal proceedings and that the presumption of
innocence afforded to criminal defendants is not a constitutional
requirement in Title IX proceedings, but believes that a presumption of
non-responsibility is needed in Title IX proceedings. While commenters
correctly noted that a complainant does not wield the power of the
government prosecuting a criminal charge, the purposes served by the
presumption of non-responsibility still apply: Ensuring that the burden
of proof remains on the recipient (not on the respondent or
complainant) and that the standard of evidence is correctly applied,
and ensuring the recipient does not treat the respondent as responsible
until conclusion of the grievance process. The procedural requirements
of Sec. 106.45 equalize the rights of complainants and respondents to
participate in the investigation and adjudication by presenting each
party's own view of the evidence and desire for the case outcome, while
leaving the burden of gathering evidence and the burden of proof on the
recipient.
Changes: We have added Sec. 106.71(a) to the final regulations,
prohibiting retaliation against any person exercising rights under
Title IX. In addition, Sec. 106.71(b)(2) clarifies that charging an
individual with a code of conduct violation for making a materially
false statement in bad faith in the course of a grievance process does
not constitute retaliation, but a determination regarding
responsibility, alone, is not sufficient to conclude that an individual
made a materially false statement in bad faith.
Students of Color, LGBTQ Students, and Individuals With Disabilities
Comments: Multiple commenters asserted that, because of the
presumption of non-responsibility, schools may be more likely to ignore
or punish survivors who are women and girls of color, pregnant and
parenting students, and LGBTQ students because
[[Page 30260]]
of harmful stereotypes. Commenters argued that the presumption would
especially harm Asian Pacific Islander women who, because of social
taboos about sexual activity prevalent in Asian cultures, are
significantly less likely to report instances of sexual assault and
will feel further deterred by a presumption favoring the respondent.
Commenters argued that Black women and girls are more likely to be
punished by schools who stereotype them as the aggressor when they
defend themselves against their harassers or when they respond to
trauma.
Several commenters argued that the presumption would harm students
with disabilities because they are more likely to be victims of sexual
assault and may be particularly vulnerable to unfair treatment due to
the presumption of non-responsibility, and because students with
disabilities are less likely to be believed when they report these
experiences and often have greater difficulty describing the harassment
they experience.\1063\ One commenter opposed Sec. 106.45(b)(1)(iv)
because the provision does not address sexual harassment and assault
cases involving students with disabilities.
---------------------------------------------------------------------------
\1063\ Commenters cited: U.S. Dep't. of Justice, National
Institute of Justice, The Many Challenges Facing Sexual Assault
Survivors With Disabilities (July 19, 2017), https://www.nij.gov/topics/crime/rape-sexual-violence/Pages/challenges-facing-sexual-assault-survivors-with-disabilities.aspx.
---------------------------------------------------------------------------
Other commenters who agreed with the proposed rules, including the
presumption, recounted personal stories in which family members and
friends who are Black males were falsely accused of sexual assault yet
the recipient seemed to treat the respondent as guilty unless proven
innocent. One commenter asserted that the sexual assault grievance
process has become a tool for white administrators to punish Black
males as young as five years old. The commenter wished to see what they
called an outdated Jim Crow-era system replaced with a system that is
fair to all.
Other commenters supported this provision based on personal stories
about students with disabilities whom commenters believed had been
falsely accused of sexual misconduct, including students with autism
who found the Title IX grievance process traumatic.
Discussion: The Department understands commenters' concerns that
students of color, LGBTQ students, students with disabilities, and
other students will be adversely affected by the presumption of non-
responsibility. The Department does not believe that the presumption
will adversely affect the rights of any complainant, including
complainants of demographic groups who may suffer sexual harassment at
greater rates than members of other demographic groups. The Department
believes that a presumption that protects respondents from being
treated as responsible until conclusion of a grievance process furthers
the recipient's obligation to fairly resolve allegations of sexual
harassment and increases the likelihood that every outcome will carry
greater legitimacy.
Further, students of color, LGBTQ students, and students with
disabilities may be respondents in Title IX grievance processes, in
which situation the presumption of non-responsibility reinforces the
recipient's obligation not to prejudge responsibility, countering
negative stereotypes that may affect such respondents.
The presumption of non-responsibility in Sec. 106.45(b)(1)(iv)
does not contribute to negative stereotypes that commenters
characterize as causing people to disbelieve students of color,
pregnant or parenting students, LGBTQ students, or students with
disabilities (or conversely, to rush to assume the responsibility of
such students based on similar negative stereotypes). The presumption
protects respondents against being treated as responsible until
conclusion of the grievance process but this does not entail
disbelieving complainants. Any person may be a complainant or a
respondent, and the final regulations require all Title IX personnel to
serve impartially, without prejudging the facts at issue, and without
bias toward complainants or respondents generally or toward an
individual complainant or respondent.
Changes: None.
The Complainant's Right to Due Process Protections
Comments: Commenters argued that the presumption of non-
responsibility is a deprivation of the complainant's own due process
rights, and argued that the complainant will be forced to proceed
blindly, at a severe information deficit, while being forced to
overcome the presumption. Other commenters argued that merely stating
that the recipient will bear the burden of proof does not in practical
terms make it so, and a presumption that the respondent is not
responsible in reality shifts the burden of proof onto the complainant.
Many commenters asserted that the respondent should bear the burden to
prove the respondent is innocent.
One commenter, citing John Doe v. University of Cincinnati,\1064\
noted that a court in the Southern District of Ohio found no violation
of due process where the respondent argued that the recipient failed to
grant the respondent a presumption of non-responsibility. Another
commenter asserted that the U.S. Supreme Court has already balanced the
competing interests and determined what process is due and it does not
require a presumption of non-responsibility, because in Mathews v.
Eldridge \1065\ the U.S. Supreme Court considered (1) the private
interest that will be affected; (2) the risk of an erroneous
deprivation of such interest through procedures used, and the probable
value, if any, of additional procedural safeguards; and (3) the
government's interest, yet did not specify that a presumption favoring
any party was required.
---------------------------------------------------------------------------
\1064\ Commenters cited: Doe v. Univ. of Cincinnati, 173 F.
Supp. 3d 586, 604 (S.D. Ohio 2016), aff'd sub nom. Doe v. Cummins,
662 F. App'x 437, 447 (6th Cir. 2016).
\1065\ Commenters cited: Mathews v. Eldridge, 424 U.S. 319
(1976).
---------------------------------------------------------------------------
Many commenters argued that the presumption will make many women
feel it is not worth it to report their assaulters to authorities
because survivors already often do not report their sexual assaults due
to fear of being disbelieved and the presumption will only heighten the
perception that the recipient believes respondents and disbelieves
complainants.\1066\ One commenter asserted that, out of every 1,000
rapes, only 230 are reported to police, and just five result in
conviction,\1067\ and argued that a presumption in favor of respondents
will lead to even fewer perpetrators of rape being held accountable.
---------------------------------------------------------------------------
\1066\ Commenters cited: Kathryn J. Holland & Lilia M. Cortina,
The evolving landscape of Title IX: Predicting mandatory reporters'
responses to sexual assault disclosures, 41 Law & Hum. Behavior 5
(2017).
\1067\ Commenters cited: U.S. Dep't. of Justice, Federal Bureau
of Investigation, National Incident-Based Reporting System, 2012-
2016 (2017).
---------------------------------------------------------------------------
Discussion: The presumption of non-responsibility does not hold
complainants to a higher standard of evidence, shift the burden of
proof onto complainants, require complainants to ``overcome'' the
presumption or proceed ``blindly'' through an investigation, or deny
complainants due process. Rather, the presumption simply requires that
the recipient not treat the respondent as responsible until the
recipient has objectively evaluated the evidence, and reinforces
application of the standard of evidence the recipient has already
selected (which may be the preponderance of the evidence standard, or
the clear and convincing evidence standard).\1068\ The final
regulations require the burden of proof
[[Page 30261]]
to remain on the recipient,\1069\ and the recipient must reach a
determination of responsibility against the respondent if the evidence
meets the applicable standard of evidence. The complainant therefore
does not bear any burden of proof and does not have to ``overcome'' the
presumption. The presumption does not negate the strong procedural
protections given to complainants throughout the grievance process, and
these due process protections ensure that complainants have a
meaningful opportunity (equal to that of respondents) to put forward
the complainant's own evidence and arguments about the evidence, even
though the burden of proof remains on the recipient.
---------------------------------------------------------------------------
\1068\ Section 106.45(b)(1)(vii).
\1069\ Section 106.45(b)(5)(i).
---------------------------------------------------------------------------
The Department declines to place the burden of proof on respondents
to prove non-responsibility because the purpose of Title IX is to
ensure that the recipient, not the parties, bears responsibility to
draw accurate conclusions about whether sexual harassment has occurred
in the recipient's education program or activity. Title IX obligates
recipients, not individual students or employees, to operate education
programs or activities free from sex discrimination, so it is the
recipient's burden to gather relevant evidence and carry the burden of
proof.
While the Department acknowledges the Federal district court
decision cited by a commenter for the proposition that courts do not
require a presumption of non-responsibility in Title IX proceedings,
neither the Federal district court, nor the Sixth Circuit on appeal of
that case, disapproved of a recipient applying a presumption of non-
responsibility in a Title IX case or suggested that such a presumption
would be constitutionally problematic; rather, the district court's
opinion held that the recipient's alleged failure to provide such a
presumption (even if true) would not amount to a due process
deprivation under the U.S. Constitution.\1070\ On appeal, the Sixth
Circuit did not address the presumption of non-responsibility issue at
all, and noted that it appeared the recipient placed the burden of
proof on the itself (not on either party), a practice that was
constitutionally sound \1071\ and a requirement the final regulations
impose on recipients in Sec. 106.45(b)(5)(i).
---------------------------------------------------------------------------
\1070\ Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 604
(S.D. Ohio 2016), aff'd sub nom. Doe v. Cummins, 662 F. App'x 437,
447 (6th Cir. 2016) (``Nevertheless, even assuming that the
[recipient] placed the burden of proof on Plaintiffs as they claim,
they have not stated a due process violation. As Defendants
correctly argue in their brief, ``[o]utside the criminal law area,
where special concerns attend, the locus of the burden of persuasion
is normally not an issue of Federal constitutional moment.''). This
does not imply that a presumption of non-responsibility would be
problematic under a constitutional analysis.
\1071\ Cummins, 662 F. App'x at 449 (noting that the recipient
appeared to place the burden of proof on the recipient rather than
on either the complainant or respondent and stating ``Allocating the
burden of proof in this manner--in addition to having other
procedural mechanisms in place that counterbalance the lower
standard used . . . is constitutionally sound and does not give rise
to a due-process violation.''). The final regulations similarly
allocate the burden of proof on the recipient (and not on either
party). Sec. 106.45(b)(5)(i).
---------------------------------------------------------------------------
Additionally, the Department is not persuaded by the commenter's
citation to Mathews v. Eldridge, a U.S. Supreme Court case which set
forth a three-part balancing test for determining the amount of process
due to meet the basic requirements of providing notice and meaningful
opportunity to be heard in particular situations and held that an
evidentiary hearing is not required prior to the Social Security
Administration's termination of social security benefits (in part
because the basic due process requirements of notice and meaningful
opportunity to be heard were met when an evidentiary hearing was
available before a termination decision became final).\1072\ The
Mathews Court did not address the issue of whether a presumption is
appropriate in an administrative proceeding and is inapposite on that
particular point. As noted in the ``Role of Due Process in the
Grievance Process'' section of this preamble, the Department believes
that the Sec. 106.45 grievance process is consistent with
constitutional due process requirements and serves important policy
purposes with respect to the fairness, accuracy, and perception of
legitimacy of Title IX grievance processes.
---------------------------------------------------------------------------
\1072\ See Mathews v. Eldridge, 424 U.S. 319, 335, 349 (1976)
(holding that determining the adequacy of due process procedures
involves a balancing test that considers the private interest
affected, the risk of erroneous deprivation and benefit of
additional procedures, and the government's interest including the
burden and cost of providing additional procedures).
---------------------------------------------------------------------------
Changes: None.
False Allegations
Comments: Many commenters cited statistics that most people who
report sexual assault are telling the truth, so a presumption of non-
responsibility does not reflect reality. Several commenters urged the
Department not to require recipients to presume that the respondent is
not responsible, since they say that statistics show that most
respondents are guilty. Numerous commenters asserted that the rate of
false reporting of sexual assault is between two to ten percent.\1073\
Other commenters asserted that 95 percent of sexual assault reports to
the police are true.\1074\ Commenters asserted that since data
collection began in 1989, there are only 52 cases where men have been
exonerated after being falsely convicted of sexual assault while in the
same period, 790 men were exonerated for murder.\1075\
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\1073\ Commenters cited, e.g., David Lisak et al., False
Allegations of Sexual Assault: An Analysis of Ten Years of Reported
Cases, 16 Violence Against Women 12, 1318 (2010); see also the
``False Allegations'' subsection of the ``General Support and
Opposition'' section of this preamble.
\1074\ Commenters cited: Claire E. Ferguson & John M. Malouff,
Assessing Police Classifications of Sexual Assault Reports: A Meta-
Analysis of False Reporting Rates, 45 Archives of Sexual Behavior 5,
1185 (2016).
\1075\ Commenters cited: National Registry of Exonerations,
http://www.law.umich.edu/special/exoneration/Pages/browse.aspx.
---------------------------------------------------------------------------
Commenters argued that all false accusations, wrongful expulsions,
suspensions, punishments, and undue burdens levied against respondents
still do not add up to the overwhelming numbers of victims, so any
provision that makes it harder for victims to prevail only serves to
harm a greater number (of victims) in an attempt to protect a very
small number (of falsely accused respondents), leading to greater
unequal access to education for victims. Commenters argued that very
few respondents who are found guilty are expelled, and therefore
respondents are usually not in danger of losing their access to
educational opportunities, so a wrongful result adverse to a respondent
is not as consequential as a wrongful result adverse to a complainant.
Other commenters argued that a presumption against responsibility
is not needed because it is easy to identify patterns of individuals
who file false accusations, because almost all false accusers have ``a
history of bizarre fabrications or criminal fraud.'' \1076\ Commenters
stated that false accusations are unusually dramatic, involving gang
rape, a gun or a knife, or violent attacks from strangers resulting in
severe injuries.
---------------------------------------------------------------------------
\1076\ Commenters cited: Sandra Newman, What Kind of Person
Makes False Rape Accusations, Quartz (May 11, 2017).
---------------------------------------------------------------------------
Other commenters supported the presumption by asserting that false
allegations do occur, and with more regularity than other commenters
claim. Commenters cited the incidence of numerous lawsuits filed by
students claiming they had been falsely accused,\1077\ arguing that the
prevalence of these lawsuits shows that many respondents, mostly young
men, have been falsely accused and suspended or
[[Page 30262]]
expelled from school under procedures that lacked fairness and
reliability, often resulting in a respondent de facto being required to
try to prove innocence. Commenters referred to high-profile campus
sexual assault situations that commenters argued demonstrate the fact
that false rape accusations do occur and damage respondents caught in
systems that prejudge them without any benefit of being presumed
innocent. Commenters argued that the frequency of false accusations is
not as low as other commenters have claimed because studies examining
the rate of false accusations only count accusations proven to be
false, and do not count accusations dismissed for lack of evidence. One
commenter shared details of the commenter's own research finding that
53 percent of sexual assault allegations were false, which the
commenter argued is much higher than the ``2-10%'' statistic relied on
by many victim advocates; \1078\ the commenter argued that the 53
percent number is more accurate because it counted ``not responsible''
determinations as ``false accusations.''
---------------------------------------------------------------------------
\1077\ Commenters cited: T. Rees Shapiro, Expelled for sex
assault, young men are filing more lawsuits to clear their names,
The Washington Post (Apr. 28, 2017).
\1078\ Commenters cited: National Sexual Violence Resource
Center, False Reporting: Overview (2012); see also the ``False
allegations'' subsection of the ``General Support and Opposition''
section of this preamble.
---------------------------------------------------------------------------
One commenter asserted that high-conflict divorce proceedings take
into account the reality that spite plays a role in some parties'
negotiations and litigation strategies, but many people seem to believe
sexual harassment allegations are almost entirely free of such
distorting motives.
Discussion: The Department is not persuaded by commenters who
argued that we should remove the presumption of non-responsibility from
the final regulations because of studies showing that many, or even the
vast majority, of allegations of sexual assault are true. Statistical
findings can be instructive but not dispositive, and statistics cannot
by themselves justify or rationalize procedural protections in a
process designed to determine the truth of particular allegations
involving specific individuals.\1079\ Even if only two to ten percent
of rape allegations are false or unfounded, the Department believes
that statistical generalizations must not compel conclusions about the
truth of particular allegations because without careful assessment of
the facts of each particular situation it is not be possible to know
whether the respondent is one of the 90 to 98 percent who statistically
are ``guilty'' or among the two to ten percent who are statistically
``innocent.'' \1080\
---------------------------------------------------------------------------
\1079\ V.C. Ball, The Moment of Truth: Probability Theory and
Standards of Proof, 14 Vand. L. Rev. 807, 811 (1961) (``[F]or
individuals there are no statistics, and for statistics no
individuals.'').
\1080\ See Alex Stein, An Essay on Uncertainty and Fact-Finding
in Civil Litigation, with Special Reference to Contract Cases, 48
Univ. of Toronto L. J. 299, 301 (1998) (``Allowing verdicts to be
based upon bare statistical evidence, rather than on case-specific
proof, is generally regarded as problematic. Adjudication involves
individuals and their individual affairs, which need to be
translated into individual rights and duties. This is not the case
with bare statistical evidence. As the famous saying goes, for
statistics there are no individuals and for individuals, no
statistics.'').
---------------------------------------------------------------------------
Similarly, whether respondents are expelled at low rates or high
rates, the final regulations are concerned with ensuring that the
determination regarding responsibility is reliable and perceived as
legitimate. For reasons described elsewhere in this preamble, the
Department does not require any particular disciplinary sanctions
against respondents, because these Title IX regulations are focused on
requiring remedies for victims, leaving disciplinary decisions to
recipients' discretion. For similar reasons, the Department declines to
adopt a premise that most false allegations are ``easy to identify''
because even if research has identified certain patterns, common
features, or motives for false allegations, it is not possible to
assess the veracity of a complainant's specific allegations, or an
individual complainant's motive, based on generalizations. Therefore,
procedural rules designed for fairness and accuracy cannot be based on
statistics or studies about what kind of allegations tend to be false.
The Department disagrees that all determinations of non-responsibility
are fairly characterized as involving a false or unfounded allegation;
as numerous commenters have pointed out, an allegation may be true and
lack sufficient evidence to meet a standard of evidence proving
responsibility, or an allegation may be inaccurate but not
intentionally falsified. The final regulations add Sec. 106.71(b)
cautioning recipients that punishing a party ostensibly for making
false statements during a grievance process may constitute unlawful
retaliation unless the recipient has concluded that a party made a bad
faith materially false statement and that conclusion is not based
solely on the determination regarding responsibility. This provision
acknowledges the reality that a complainant's allegations may not have
been false even where the ultimate determination is that the respondent
is not responsible and/or that the complainant may not have acted
subjectively in bad faith (and conversely, that a respondent may not
have made false, or subjectively bad faith, denials even where the
respondent is found responsible).
The presumption of non-responsibility is not designed to protect
``a few'' falsely accused respondents at the expense of ``the many''
sexual harassment victims; the presumption is designed to improve the
accuracy and legitimacy of the outcome in each individual formal
complaint of sexual harassment to prevent injustice to any complainant
or any respondent.
Changes: Section 106.71(b) states that charging an individual with
a code of conduct violation for making a bad faith materially false
statement during a grievance process is not retaliation so long as that
conclusion is not based solely on the determination regarding
responsibility.
Inaccurate Findings of Non-Responsibility
Comments: Commenters argued that, in a misguided attempt to shield
falsely accused people, the presumption of non-responsibility will
allow assailants to go unpunished, which will further traumatize and
disempower victims. Commenters argued that the presumption would allow
more sexual harassment perpetrators to escape responsibility because it
can be difficult to prove sexual assault, and evidence is frequently
scant or based heavily on testimony alone so overcoming a presumption
is yet another unfair obstacle for survivors to receive justice.
Commenters argued that, for those schools that employ a clear and
convincing evidence standard, complainants will be more likely to lose
the case, a result compounded by the presumption of non-responsibility.
Commenters argued that abusive people will be found not responsible
more often, making campuses less safe and increasing the number of
sexual assaults on campuses. Another commenter argued that the
presumption ensures that only the most egregious cases of sexual
assault will be punished, which is unjust for many women.
Some commenters disagreed with the presumption, asserting that it
requires fact-finding doctrines used in criminal law proceedings.
Commenters expressed concern that, if schools handle complaints of
sexual assault the same way law enforcement handles them, most
complaints will not be pursued. One commenter asserted that 69 percent
of survivors have experienced police officers discouraging them from
filing a report and one-third of survivors have
[[Page 30263]]
experienced police refusing to take their reports.\1081\
---------------------------------------------------------------------------
\1081\ Commenters cited: Rebecca Campbell, Survivors' Help-
Seeking Experiences with the Legal and Medical Systems, 20 Violence
& Victims 1 (2005).
---------------------------------------------------------------------------
Commenters argued that the presumption is in tension with Sec.
106.45(b)(1)(ii), which states that ``credibility determinations may
not be based on a person's status as a complainant'' or ``respondent.''
One commenter asserted that the presumption would not work for
medical schools, because medical students frequently experience sexual
harassment or assault from patients or visitors, and medical schools do
not have the authority to compel them to participate in investigatory
interviews or live hearings.\1082\
---------------------------------------------------------------------------
\1082\ Commenters cited: Charlotte Grinberg, `These Things
Sometimes Happen': Speaking Up About Harassment, 37 Health Affairs 6
(2018).
---------------------------------------------------------------------------
Discussion: As applied under these final regulations, in the
context of a Title IX grievance process, the presumption does not
operate to let ``guilty'' respondents go free. While the presumption is
based on a similar principle animating the presumption of innocence in
criminal law, the Sec. 106.45 grievance process generally, including
the presumption under Sec. 106.45(b)(1)(iv), does not mirror criminal
law protections or mimic criminal courts. As discussed below, the
presumption of non-responsibility reinforces that the burden of proof
remains on the recipient, not on either party, and reinforces
application of the standard of evidence, which under the final
regulations must be lower than the criminal standard of beyond a
reasonable doubt.
The Department disagrees that the final regulations require schools
to handle reports or formal complaints of sexual assault the same way
law enforcement handles them. Recipients are prohibited from showing
deliberate indifference towards sexual harassment complainants,
including by offering supporting measures to complainants irrespective
of whether a formal complaint is ever filed, and under these final
regulations recipients are obligated to investigate formal complaints,
unlike law enforcement where officers and prosecutors generally have
discretion to decline to investigate and prosecute. Further, law
enforcement and criminal prosecutors gather evidence under a burden to
prove guilt beyond a reasonable doubt, but the final regulations place
a burden on recipients to meet a burden of proof that shows a
respondent responsible measured against a lower standard of
evidence.\1083\
---------------------------------------------------------------------------
\1083\ Section 106.45(b)(1)(vii) (requiring recipients to select
and apply to all Title IX sexual harassment cases a standard of
evidence that is either the preponderance of the evidence standard,
or the clear and convincing evidence standard).
---------------------------------------------------------------------------
The Department is unpersuaded by commenters who asserted that the
presumption will make campuses more dangerous because it will chill
reporting or prevent recipients from punishing and expelling offenders
from campuses because Sec. 106.45 is too similar to criminal
procedures. A presumption of non-responsibility need not chill or deter
reporting of sexual harassment, because reporting under the final
regulations leaves complainants autonomy over whether to seek
supportive measures or also participate in a grievance process, and
because a fair process with procedures rooted in principles of due
process provides assurance that the outcome of a grievance process
(when a complainant or Title IX Coordinator decides to initiate a
grievance process) is reliable and viewed as legitimate.
Refraining from treating a respondent as responsible until
conclusion of the grievance process does not make it more difficult to
hold a respondent responsible or prevent implementation of supportive
measures for a complainant. To the extent that commenters are
advocating for latitude for recipients to impose interim suspensions or
expulsions, the Department believes that without a fair, reliable
process the recipient cannot know whether it has interim-expelled a
respondent who is actually responsible for the allegations, or a
respondent who is not responsible. However, the Department reiterates
that Sec. 106.44(c) allows emergency removals of respondents prior to
conclusion of a grievance process (or even where no grievance process
is pending), thus protecting the safety of a recipient's community
where an immediate threat exists.
Because the standard of evidence is lower in the Title IX grievance
process (recipients must select and apply either the preponderance of
the evidence standard or the clear and convincing evidence standard)
than in a criminal proceeding (beyond a reasonable doubt), the
presumption in Sec. 106.45(b)(1)(iv) does not convert the standard of
evidence to the criminal standard (beyond a reasonable doubt). Under
the Sec. 106.45 grievance process, the Sec. 106.45(b)(1)(iv)
presumption ensures that recipients correctly apply the standard of
evidence selected by each recipient, but no recipient is permitted to
select the criminal ``beyond a reasonable doubt'' standard.\1084\ Thus,
the presumption helps to ensure that the recipient does not treat a
respondent as responsible until conclusion of the grievance process,
and to reinforce a recipient's proper application of the standard of
evidence the recipient has selected \1085\ without converting the Title
IX grievance process to a criminal court proceeding. The presumption
does not make it more difficult to hold a respondent responsible,
because the presumption reinforces, but does not change, the burden of
proof that rests on the recipient and the obligation to appropriately
apply the recipient's selected standard of evidence in reaching a
determination regarding responsibility to decide if the recipient's
burden of proof has been met. The presumption will not result in
assailants going unpunished; a perpetrator of sexual harassment proved
responsible for the alleged conduct may be punished at the recipient's
discretion, and these final regulations require the recipient to
effectively implement remedies for the complainant where a respondent
is found to be responsible.\1086\
---------------------------------------------------------------------------
\1084\ Section 106.45(b)(1)(vii); Sec. 106.45(b)(7)(i); see
also discussion in the ``Section 106.45(b)(7)(i) Standard of
Evidence and Directed Question 6'' subsection of the
``Determinations Regarding Responsibility'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section
of this preamble.
\1085\ Because the Department has determined that the
preponderance of the evidence standard is the lowest possible
standard of evidence that a recipient may select for a Sec. 106.45
grievance process, the presumption of non-responsibility's function
of ensuring proper application of the standard of evidence is
particularly important where a recipient has selected the
preponderance of the evidence standard, to ensure that in cases
where the evidence is in equipoise (i.e., ``50/50'') the result is a
determination of non-responsibility. E.g., Vern R. Walker,
Preponderance, Probability, and Warranted Factfinding, 62 Brooklyn
L. Rev. 1075, 1076 (1996) (noting that the traditional formulation
of the preponderance of the evidence standard by courts and legal
scholars is that the party with the burden of persuasion must prove
that a proposition is more probably true than false meaning a
probability of truth greater than 50 percent); Neil B. Cohen, The
Gatekeeping Role in Civil Litigation and the Abdication of Legal
Values in Favor of Scientific Values, 33 Seton Hall L. Rev. 943,
954-56 (2003) (noting that the preponderance of the evidence
standard applied in civil litigation results in the plaintiff losing
the case where the plaintiff's and defendant's positions are ``in
equipoise'' i.e., where the evidence presented makes the case ``too
close to call'').
\1086\ Section 106.45(b)(1)(i); Sec. 106.45(b)(7)(iv).
---------------------------------------------------------------------------
The structure of the fact-finding process, including the
presumption, prevents recipients from acting on an assumption that a
particular complainant is (or is not) truthful; similarly, recipients
may not look to the presumption as an excuse to ``believe'' or find
credible, the respondent and to
[[Page 30264]]
do so would violate Sec. 106.45(b)(1)(ii). Thus, the Department
disagrees with commenters who argue that the presumption contradicts
Sec. 106.45(b)(1)(ii) which requires that recipients may not make
credibility determinations based on a party's status as a complainant
or respondent. The presumption in Sec. 106.45(b)(1)(iv) reinforces the
obligation in Sec. 106.45(b)(1)(ii) to refrain from drawing inferences
about credibility based on a party's status as a complainant or
respondent.
Nothing in the final regulations, including the presumption of non-
responsibility, prevents recipients who are medical schools from
offering supportive measures to medical students who allege that
hospital patients or visitors are sexually harassing them. Section
106.30 defining ``supportive measures'' provides that the recipient may
offer such measures either before or after the filing of a formal
complaint or where no formal complaint has been filed, for the purpose
of restoring the complainant's access to the education program without
unreasonably burdening the respondent. The Department cannot comment
more specifically as to what supportive measures might be reasonably
available to preserve a medical student's equal access and avoid
unreasonably burdening a respondent who is a patient or visitor,
because each case requires the recipient's independent review and
judgment. Where the respondent is a patient or visitor to the
recipient's campus or facility and the recipient thus lacks an
employment or enrollment relationship with the respondent, a recipient
has discretion under Sec. 106.45(b)(3)(ii) to dismiss a formal
complaint where the respondent is not enrolled or employed by the
recipient; or, also in the recipient's discretion, the recipient may
investigate and adjudicate a formal complaint against such a respondent
and, for example, issue a no-trespass order following a determination
regarding responsibility. Regardless of how a recipient exercises its
discretion with respect to formal complaints against respondents over
whom a recipient lacks disciplinary authority, medical schools may
still comply with the requirements in these final regulations to
respond to sexual harassment that occurs in the recipient's education
program or activity.
Changes: None.
Recipients Should Apply Dual Presumptions or No Presumption
Comments: Commenters stated that Sec. 106.45(b)(1)(iv) equates to
a presumption that the complainant is lying, or a presumption that the
alleged harassment never occurred. Commenters asserted if presumptions
exist, the provision should direct the recipient to presume, in
addition to the respondent's presumption of non-responsibility, that
the complainant is credible and making a good faith complaint. One
commenter asserted that the Department should provide training to
address bias against complainants.
Commenters argued that, because the grievance process is not a
criminal proceeding, there should be no presumption in favor of either
party. Commenters argued that investigators should have no
presumption--either in favor or against either party--when performing
their fact-finding duties. Commenters argued that it is unfair to
complainants to start an investigation with a presumption of the
respondent's innocence, just as it would be unfair to the respondent to
start with a presumption of guilt. Commenters argued that in civil and
administrative proceedings, both parties start on equal footing in the
process with a blank slate in front of the decision-maker, and there is
no reason why Title IX proceedings should not treat the parties equally
in this manner. Commenters argued that while criminal proceedings give
defendants a presumption of innocence, State and Federal victims'
rights laws balance even that presumption of innocence to ensure
victims are treated fairly. Commenters argued that a civil case
requires that the victim and perpetrator appear as equals \1087\ and
argued that a Title IX investigation should treat both parties equally
regarding credibility, with no presumption of innocence or presumption
of guilt. One commenter argued that the presumption makes no sense in
an educational environment because the complainant and respondent are
tied together because of their relationship to the institution, which
is different from the relationship between defendants and the
government in criminal matters, and the Sec. 106.45(b)(1)(iv)
presumption will negatively impact every complainant's education
because the complainant will be assumed to be lying just by filing a
complaint.
---------------------------------------------------------------------------
\1087\ Commenters cited: The National Center for Victims of
Crime, ``Criminal and Civil Justice,'' http://victimsofcrime.org/media/reporting-on-child-sexual-abuse/criminal-and-civil-justice,
for this proposition.
---------------------------------------------------------------------------
Commenters asserted that currently there is no presumption of non-
responsibility for respondents in other student misconduct proceedings,
such as theft, cheating, plagiarism, and even physical assault.
Commenters argued that if the Department believes such a presumption is
important in sexual misconduct cases, then it should require the
presumption in all student misconduct cases for the sake of uniformity.
Discussion: The Department declines to adopt commenters'
recommendations that recipients should presume that complainants are
credible. If the presumption of non-responsibility meant assuming that
the respondent is credible, then the Department would agree that such a
presumption would be unfair to complainants and should be balanced by
an equal presumption of credibility for complainants (or, more
reasonably, no presumptions at all). However, the presumption of non-
responsibility is not a presumption about the respondent's credibility,
believability, or truthfulness, and Sec. 106.45(b)(1)(ii) requires
recipients not to make credibility determinations based on a party's
status as complainant or respondent. A critical feature of a fair
grievance process is that Title IX personnel refrain from drawing
conclusions or making assumptions about either party's credibility or
truthfulness until conclusion of the grievance process; therefore, the
Department declines to impose a presumption that either party (or both
parties) are credible or truthful. Because the presumption of non-
responsibility is not a presumption that a respondent is credible,
there is no need for a presumption specific to complainants to balance
or counteract the presumption of non-responsibility.\1088\ The
[[Page 30265]]
presumption of non-responsibility does not assume, or allow recipients
to act as though, complainants are lying; under the final regulations,
recipients must not prejudge the facts at issue, must not draw
inferences about credibility based on a party's status as a complainant
or respondent, and must objectively evaluate all relevant evidence to
reach a determination regarding responsibility.
---------------------------------------------------------------------------
\1088\ A presumption specific to a complainant that corresponds
to the presumption of a respondent's non-responsibility might,
hypothetically, be a presumption that the complainant is not
responsible--but such a presumption simply does not apply to a
complainant, because a complainant by definition is not alleged to
be responsible for misconduct. Alternatively, a presumption specific
to a complainant analogous to the presumption of non-responsibility
might be that the complainant must be treated as a victim of the
respondent's conduct until conclusion of the grievance process
(because, as explained above, the presumption of non-responsibility
operates to treat a respondent as ``not a perpetrator'' until
conclusion of the grievance process, subject to the Sec. 106.44(c)
and Sec. 106.44(d) exceptions for emergency removals and
administrative leave for employee-respondents). However, the
Department does not believe such a presumption would operate to
protect complainants in any manner not already provided for in the
final regulations. Section 106.44(a) already requires the recipient
essentially to treat a complainant as a victim in need of services
in the aftermath of suffering sexual harassment (by offering
supportive measures and engaging in an interactive discussion with
the complainant to arrive at helpful supportive measures to preserve
the complainant's equal educational access) even before, or without,
a fact-finding process that has determined that the respondent
victimized the complainant. Moreover, the grievance process
effectively requires a complainant to be treated as a victim in two
specific provisions that apply for complainants' benefit: Sec.
106.45(b)(6)(i)-(ii) provides rape shield protection for
complainants--but not respondents--against questions and evidence
inquiring into the complainant's prior sexual behavior; and Sec.
106.45(b)(6)(i) allows either party to request that a live hearing
(including cross-examination) occurs in separate rooms. While the
latter provision applies on its face to both parties, the provision
is responsive to public comment informing the Department that
complainants already traumatized by sexual violence likely will be
traumatized by coming face-to-face with the respondent; no such
concerns about the traumatic effect of personal confrontation were
raised on behalf of respondents. Thus, where appropriate, the
grievance process takes into account the unique needs of
complainants, in ways that the Department believes serve Title IX's
non-discrimination mandate by protecting complainants as though
every complainant has been victimized, without unfairness to the
respondent. A presumption of non-responsibility does not deprive a
complainant of the protections given solely to complainants under
Sec. 106.44(a) and Sec. 106.45, nor deprive a complainant of the
benefits of the robust procedural rights given equally to both
parties during the grievance process.
---------------------------------------------------------------------------
The procedural rights granted to both parties under Sec. 106.45
ensure that complainants and respondents have equal opportunities to
meaningfully participate in putting forth their views about the
allegations and their desired case outcome, an essential requirement
for due process even in a civil (noncriminal) setting.\1089\ The
Department disagrees that in civil (as opposed to criminal) trials the
plaintiff and defendant ``appear as equals'' in every regard, because
even in civil trials the burden of proof generally rests on the
plaintiff to prove allegations, not on the defendant to prove non-
liability.\1090\ Thus, while parties in civil litigation (and under
Sec. 106.45) have equal rights to participate in the process (for
example, by gathering and presenting evidence), a burden of proof must
still be met. The final regulations ensure that neither party bears the
burden of proof (which remains on the recipient) yet give both parties
equal procedural rights throughout the grievance process. The
presumption does not create inequality between the complainant and
respondent; the presumption reinforces the recipient's burden of proof
and correct application of the standard of evidence, neither of which
burdens or disadvantages the complainant.
---------------------------------------------------------------------------
\1089\ E.g., Niki Kuckes, Civil Due Process, Criminal Due
Process, 25 Yale Law & Pol. Rev. 1, 10-11 (2006) (due process in
civil settings ``places central importance on the participation of
the affected party in decision-making. Ex parte procedures are the
exception, while participatory procedures are the rule. Notice and
an opportunity to be heard is, obviously, the principle without
which a participatory model of justice cannot work effectively.
Unless a party is notified that there is a controversy, it cannot
participate in decision-making; unless a party has the opportunity
for a hearing, it cannot present its side of the controversy; and
unless the decision-maker hears from both parties, there cannot be a
meaningful ruling. This is the adversary system's vision of
justice.'').
\1090\ E.g., Dale A. Nance, Civility and the Burden of Proof, 17
Harv. J. of L. & Pub. Pol'y 647, 659 (1994) (in civil litigation
``it remains true that the burden is placed, in the vast majority of
contexts, on the person or institution claiming that someone has
breached a duty serious enough to warrant legal recognition.''). We
reiterate that the final regulations, Sec. 106.45(b)(1)(i), place
the burden squarely on the recipient--not on the complainant--to
prove that a respondent has committed sexual harassment.
---------------------------------------------------------------------------
The Department notes that Sec. 106.45(b)(1)(iii) not only requires
Title IX personnel to serve without bias for or against complainants or
respondents, but also requires training for Title IX personnel,
expressly to avoid bias for or against complainants or respondents
generally or for or against an individual complainant or respondent.
Recipients have discretion as to the content and approaches of such
training so long as the requirements of Sec. 106.45(b)(1)(iii) are
met.
A presumption of non-responsibility reinforces placement of the
burden of proof, proper application of the standard of evidence, and
fair treatment of an accused person prior to adjudication of
responsibility. These features of a fair grievance process may be
beneficial to the legitimacy and reliability of outcomes of non-sexual
harassment student misconduct proceedings. However, these final
regulations focus only on effectuating Title IX's non-discrimination
mandate by improving the perception and reality that recipients' Title
IX proceedings reach fair, accurate outcomes; these regulations do not
impose requirements on recipients for grievance proceedings other than
for Title IX sexual harassment.
Changes: None.
The Adversarial Nature of the Grievance Process
Comments: Commenters asserted that universities already treat both
parties equitably and the presumption in Sec. 106.45(b)(1)(iv)
escalates the adversarial nature of Title IX proceedings; commenters
argued this will raise the financial and emotional toll the grievance
process will have on both complainants and respondents. Commenters
argued that the proposed regulations ask a university to act as a
judicial system, placing an undue burden on the educational system and
imposing an unprecedented amount of control over a school's--especially
a private school's--ability to develop and implement disciplinary
processes in a way that best serves its community and upholds its
values, which often include using codes of conduct to educate students
rather than be punitive. One commenter opposed the presumption because
recipients already train staff and faculty to serve neutrally, bearing
in mind the educational context in student misconduct cases, because
the student is paying to be in an educational environment, not a prison
system. One commenter warned that the presumption of non-responsibility
would create an ``inaccessibility to justice.''
Other commenters supported the presumption of non-responsibility,
arguing that Title IX proceedings are often highly contested, yet
school proceedings are biased against the accused; commenters cited
articles showing that over 150 lawsuits have been filed arising from
fundamental unfairness in schools' Title IX proceedings.\1091\
Commenters argued that a presumption of non-responsibility is essential
because recipients have denied respondents the right to know the
allegations against them or the identity of the person accusing them,
and that respondents have been repeatedly denied the ability to
question the complainant, submit exculpatory evidence, or have their
witnesses interviewed by the recipient. Commenters argued that
respondents have sued recipients for expelling them or finding them
responsible without first giving them procedural protections, and that
some courts have agreed that some recipients committed due process or
fairness violations. One commenter shared information from a
university's website promoting adherence to the public awareness
campaign ``Start by Believing,'' \1092\ which the commenter argued
shows the university's bias against accused students. Commenters argued
that college environments are highly politicized and college
[[Page 30266]]
administrators and faculty are not objective fact-finders, and a
presumption of non-responsibility helps counteract that lack of
objectivity.
---------------------------------------------------------------------------
\1091\ Commenters cited: Foundation for Individual Rights in
Education (FIRE), Report: As changes to Title IX enforcement loom,
America's top universities overwhelmingly fail to guarantee fair
hearings for students (Dec. 18, 2018); see also T. Rees Shapiro,
Expelled for sex assault, young men are filing more lawsuits to
clear their names, The Washington Post (Apr. 28, 2017).
\1092\ Commenters cited: University of Iowa Rape Victim Advocacy
program, Start By Believing, https://rvap.uiowa.edu/take-action/prevent-and-educate/start-by-believing/.
---------------------------------------------------------------------------
Discussion: The Department disagrees that the presumption of non-
responsibility increases the adversarial nature of Title IX
proceedings; Title IX proceedings are often inherently adversarial, due
to the need to resolve contested factual allegations. The Department
understands commenters' concerns that an adversarial process may take
an emotional toll on participants, and the final regulations encourage
provision of supportive measures to both parties and give both parties
an equal right to select an advisor of choice to assist the parties
during a grievance process. The presumption of non-responsibility does
not magnify the adversarial nature of the grievance process; rather,
the presumption reinforces the recipient's burden of proof, proper
application of the standard of evidence, and how a respondent is
treated pending the outcome of the grievance process. The Department
disagrees that the presumption will lead to ``inaccessibility'' of
justice; rather, complainants will benefit from increased legitimacy of
recipient determinations when respondents are found responsible, while
respondents will benefit from assurance that a recipient cannot treat
the respondent as though responsibility has been determined until the
conclusion of a fair grievance process. The Sec. 106.45 grievance
process, and the final regulations as a whole, impose an obligation on
recipients to remain impartial toward parties whose views about the
allegations are adverse to each other. To the extent that commenters'
concerns about an adversarial process reflect concern that financial
inequities can affect the process (for example, where one party can
afford to hire an attorney to further the party's interests and the
other party cannot afford an attorney), the final regulations permit,
but do not require, advisors to be attorneys, allow recipients to limit
the active participation of advisors significantly, with the exception
of conducting cross-examination at a live hearing in postsecondary
institutions,\1093\ and do not preclude recipients from offering both
parties legal representation.\1094\ This approach reflects the reality
that recipients are not courts, yet do need to apply a fair, truth-
seeking process to resolve factual allegations of Title IX sexual
harassment.
---------------------------------------------------------------------------
\1093\ Section 106.45(b)(5)(iv); Sec. 106.45(b)(6)(i).
\1094\ The Department realizes that only a fraction of
postsecondary institutions currently offer to provide both parties
in a grievance proceeding with legal representation, but such an
option remains available to recipients who choose to address
disparity with respect to the financial ability of parties to hire
legal representation in the recipient's educational community. E.g.,
Kristen N. Jozkowski & Jacquelyn D. Wiersma[hyphen]Mosley, The Greek
System: How Gender Inequality and Class Privilege Perpetuate Rape
Culture, 66 Fam. Relations 1 (2017) (noting that only about three
percent of colleges and universities provide victims with legal
representation and arguing that colleges and universities should
provide free legal representation to both complainants and
respondents in campus sexual assault proceedings).
---------------------------------------------------------------------------
The Department recognizes that some recipients expressed concerns
that the presumption of non-responsibility, in conjunction with other
provisions in Sec. 106.45, requires educational institutions to mimic
courts of law. The Department acknowledges, and the final regulations
reflect, that recipients' purpose is to educate, not to act as courts.
The Sec. 106.45 grievance process is designed for implementation by
non-lawyer recipient officials, and the final regulations do not
intrude on a recipient's discretion to use disciplinary sanctions as
educational tools of behavior modification rather than, or in addition
to, punitive measures. However, to effectuate Title IX's non-
discrimination mandate, recipients must accurately resolve allegations
of sexual harassment in order to identify and address sex
discrimination in the recipient's education program or activity. The
Department believes the presumption of non-responsibility is important
to ensure that recipients do not treat respondents as responsible until
conclusion of the grievance process and to reinforce the recipient's
burden of proof and proper application of the standard of evidence, and
these features will improve the legitimacy and reliability of the
outcomes of recipients' Title IX grievance processes.
Changes: None.
Supportive Measures
Comments: Several commenters sought clarification as to whether the
presumption in Sec. 106.45(b)(1)(iv) would preclude a recipient from
taking interim or emergency actions as dictated by individual
circumstances when needed to ensure safety. For example, if a
respondent is presumed not to be responsible for stalking a complainant
until the end of the grievance process, commenters asked how a
recipient could take effective measures to ensure that the respondent
will not stalk the complainant prior to the conclusion of the grievance
proceeding. Commenters asserted that the presumption appeared to
require the recipient to remove the complainant from dorms and classes
rather than the respondent, and that the presumption would curtail the
ability of recipients to remove harassers and abusers from dorms and
classes, which will lead to more sexual assaults because research
indicates that most perpetrators are repeat offenders.\1095\ Commenters
argued that the presumption may discourage schools from providing
crucial supportive measures to complainants to avoid being perceived as
punishing respondents.\1096\
---------------------------------------------------------------------------
\1095\ Commenters cited: David Lisak & Paul Miller, Repeat Rape
and Multiple Offending Among Undetected Rapists, 17 Violence &
Victims 1 (2002), for the proposition that a majority of
``undetected rapists'' were repeat rapists and undetected repeat
rapists committed an average of 5.8 rapes each.
\1096\ Commenters cited: Michael C. Dorf, What Does a
Presumption of Non-Responsibility Mean in a Civil Context, Dorf On
Law (Nov. 28, 2018), http://www.dorfonlaw.org/2018/11/what-does-presumption-of-non.html.
---------------------------------------------------------------------------
Commenters argued that the proposed rules not only give respondents
a presumption of innocence but also require recipients to provide
supportive measures to respondents, constituting unprecedented concern
with the well-being of accused harassers above the interests of
victims.
Discussion: The Sec. 106.30 definition of ``supportive measures''
permits recipients to provide either party, or both parties,
individualized services, without fee or charge, before or after filing
a formal complainant, or where no formal complaint has been filed.
Section 106.44(a) obligates a recipient to offer supportive measures to
every complainant, by engaging in an interactive process by which the
Title IX Coordinator contacts the complainant, discusses available
supportive measures, considers the complainant's wishes with respect to
supportive measures, and explains to the complainant the option for
filing a formal complaint. Title IX Coordinators are responsible for
the effective implementation of supportive measures, and under revised
Sec. 106.45(b)(10) if a recipient's response to sexual harassment does
not include providing supportive measures to a complainant the
recipient must specifically document why that response was not clearly
unreasonable in light of the known circumstances (for example, because
the complainant did not wish to receive supportive measures or refused
to discuss supportive measures with the Title IX Coordinator when the
Title IX Coordinator contacted the complainant to have such a
discussion). Thus, unless a complainant does not desire supportive
measures (i.e., refuses the offer of supportive measures),
[[Page 30267]]
complainants must receive supportive measures designed to restore or
preserve the complainant's equal educational access, regardless of
whether a grievance process is ever initiated. There is no
corresponding obligation to offer supportive measures to respondents;
rather, recipients may provide supportive measures to respondents and
under Sec. 106.45(b)(1)(ix) the recipient's grievance process must
describe the range of supportive measures available to complainants and
respondents.
The presumption of non-responsibility, which operates throughout a
grievance process, does not prohibit the recipient from providing a
complainant with supportive measures, but does reinforce the provision
in the Sec. 106.30 definition of ``supportive measures'' that
supportive measures are designed to restore or preserve equal access to
education ``without unreasonably burdening the other party'' including
measures designed to protect a complainant's safety or deter sexual
harassment (which includes stalking), but supportive measures cannot be
punitive or disciplinary. This does not bar all measures that place any
burden on a respondent, but only those that ``unreasonably burden'' a
respondent (or a complainant). Thus, changing a respondent's class
schedule, or forbidding the respondent from communicating with the
complainant, may be an appropriate supportive measure for a complainant
if such measures do not ``unreasonably burden'' the respondent, and
such measures do not violate the presumption of non-responsibility.
To the extent that commenters' concern is that current Department
guidance affords recipients more discretion to impose interim measures
that in fact do constitute disciplinary actions against the respondent
(for example, interim suspensions), the Department has reconsidered
that approach and, based on public comments on the NPRM, concluded that
the non-discrimination mandate of Title IX is better served by the
framework in the final regulations than the approach taken in guidance
documents. With respect to disciplinary or punitive actions taken prior
to an adjudication factually establishing a respondent's responsibility
for sexual harassment, the final regulations circumscribe a recipient's
discretion to treat a respondent as though accusations are true before
the accusations have been proved.\1097\ When applied in the context of
these final regulations, the presumption of non-responsibility's
reinforcement of the notion that a person accused should not be treated
as though accusations are true until the accusations have been proved
increases the legitimacy of a recipient's response to sexual
harassment, while preserving every complainant's right to supportive
measures designed to maintain a complainant's equal educational access
and protect a complainant's safety. This approach directly effectuates
Title IX's non-discrimination mandate by improving the fairness and
accuracy of a recipient's response to sexual harassment occurring in
the recipient's education programs or activities.
---------------------------------------------------------------------------
\1097\ The final regulations prohibit a recipient from taking
disciplinary action, or other action that does not meet the
definition of a supportive measure, against a respondent without
following a grievance process that complies with Sec. 106.45. Sec.
106.44(a); Sec. 106.45(b)(1). Through an informal resolution
process (which is authorized under Sec. 106.45) a recipient may
impose disciplinary sanctions against a respondent without
concluding an investigation or adjudication. Sec. 106.45(b)(9). An
exception to the requirement not to impose punitive or disciplinary
action until conclusion of a grievance process is Sec. 106.44(c),
permitting a recipient to remove a respondent from an education
program or activity in an emergency situation whether or not a
grievance process has been concluded or is even pending. Supportive
measures designed to restore or preserve a complainant's equal
access to education, protect parties' safety, and/or deter sexual
harassment, may be imposed even where such measures burden a
respondent, so long as the burden is not unreasonable. Sec. 106.30
(defining ``supportive measures''). Thus, the final regulations are
premised on the principle that a recipient must not treat a
respondent as responsible prior to an adjudication finding the
respondent responsible, yet that principle is not absolute and leave
recipients with the ability (and, judged under the deliberate
indifference standard, the obligation) to protect and support
complainants and respond to emergency threat situations, without
unduly, prematurely punishing a respondent based on accusations that
have not been factually proved.
---------------------------------------------------------------------------
The Department understands commenters' concerns that restricting a
recipient's ability to impose interim discipline poses a risk that
perpetrators may repeat an offense because they remain on campus while
a grievance process is pending; however, even in situations that do not
constitute the kind of immediate threat justifying an emergency removal
under Sec. 106.44(c), there are supportive measures short of
disciplinary actions that a recipient may take to protect the safety of
parties and deter sexual harassment, such as a no-contact order
prohibiting communication with the complainant, supervising the
respondent, and informing the respondent of the recipient's policy
against sexual harassment.\1098\
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\1098\ E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477 F.3d 1282, 1296 (11th Cir. 2007) (pointing to the recipient's
failure to supervise the respondent or inform the respondent of the
recipient's expectations of behavior under the recipient's sexual
harassment policy as evidence of the recipient's deliberate
indifference that subjected the complainant to sexual harassment).
---------------------------------------------------------------------------
Changes: None.
Miscellaneous Concerns
Comments: At least one commenter asked the Department to add at the
end of the presumption provision the language ``. . . respondent is not
responsible for the alleged conduct until a determination regarding
responsibility is made at the conclusion of the grievance process or
any subsequent litigation.'' Commenters asked the Department to provide
the respondent with a right to remain silent, since the respondent's
statements during any investigation or hearing could be used against
the respondent at a criminal trial. One commenter recommended inserting
the following language: ``The recipient bears the burden of
demonstrating that the respondent is responsible for the alleged
conduct and may not infer responsibility based solely on the respondent
declining to present testimony, evidence, or witnesses in response to a
formal complaint.''
Another commenter urged the Department to add to Sec.
106.45(b)(1)(iv) a sentence declaring that it is the obligation of the
recipient to prove every element of every alleged offense before the
accused student may be found responsible and punished for committing an
alleged offense.
Discussion: The Department does not attempt to regulate procedures
that apply in private lawsuits and so declines commenters' request that
the Department require a recipient to abide by a presumption of non-
responsibility until conclusion of ``any subsequent litigation.'' The
recipient's obligation is to conclude a grievance process by reaching a
determination regarding responsibility when presented with a formal
complaint of sexual harassment under Title IX, whether or not
litigation arises from the same allegations.
Section 106.6(d) provides that these regulations do not require a
recipient to restrict any rights that would otherwise be protected from
government action under the U.S. Constitution, which includes the Fifth
Amendment right against self-incrimination. To ensure that the
determination regarding responsibility is reached in a manner that does
not require violation of that constitutional right, we revised Sec.
106.45(b)(6)(i) in the final regulations to provide that a decision-
maker cannot draw any inferences about the determination regarding
responsibility
[[Page 30268]]
based on a party's failure to appear at the hearing or answer cross-
examination or other questions. While this applies equally to
respondents and complainants, this modification addresses commenters'
concerns that a respondent should not be found responsible solely
because the respondent refused to provide self-incriminating
statements. The Department declines to change Sec. 106.45(b)(1)(iv) to
add language about the recipient's burden to prove each element of an
offense, because Sec. 106.45(b)(5)(i) places the burden of proof on
the recipient.
Changes: We revised Sec. 106.45(b)(6)(i) of the final regulations
to provide that a decision-maker cannot draw any inferences about the
determination regarding responsibility based on a party's failure to
appear at the hearing or answer cross-examination or other questions.
Section 106.45(b)(1)(v) Reasonably Prompt Time Frames
Support
Comments: A number of commenters expressed support for this
section. Some did not expand upon the reasons for their support.
Others, primarily some college and university commenters, expressed
particular support for eliminating the 60-day time frame contained in
withdrawn Department guidance. Some commenters identified concerns with
a 60-day time frame, such as asserting that: It does not reflect the
complex nature of these cases, such as multiple parties, various
witnesses, time to obtain evidence, and school breaks; it is arbitrary
and hard to adhere to while providing due process for all; it
interferes with the time parties need to provide evidence and to make
their case; it has not been required by courts; and it increases the
risks of decisions based on conjecture or gender or racial stereotypes.
Other commenters contended that eliminating such a constrained timeline
would be beneficial, by for instance allowing for more thorough
investigations, collection of more evidence, and added accommodation of
disabilities.
A number of the supportive commenters also noted support more
generally for the NPRM's flexibility regarding the time to conclude
Title IX investigations and extensions for good cause. Some emphasized
that prompt resolution is important, but contended that various factors
may delay proceedings (such as police investigations, witness
availability, school breaks, faculty sabbaticals) and asserted that
fairness demands thoroughness. According to these commenters, Sec.
106.45(b)(1)(v) appropriately accounts for schools' unique attributes
(for example, their size, population, location, or mission), recognizes
that complex matters may not lend themselves to set deadlines, and
acknowledges that delays may sometimes be necessary, especially with a
concurrent criminal investigation. Likewise, some commenters expressed
support for good cause extensions for a related criminal proceeding in
the belief that students should not be forced to choose between
participating in campus proceedings and giving up their right to
silence in criminal proceedings.
Discussion: The Department appreciates the commenters' support for
Sec. 106.45(b)(1)(v) under which a recipient's grievance process must
include reasonably prompt time frames for concluding the grievance
process, including appeals and any informal resolution processes, with
temporary delays and limited extensions of time frames permitted only
for good cause. The Department agrees with commenters that this
provision appropriately requires prompt resolution of a grievance
process while leaving recipients flexibility to designate reasonable
time frames and address situations that justify short-term delays or
extensions. This is the same recommendation made in the 2001 Guidance,
which advised recipients that grievance procedures should include
``Designated and reasonably prompt time frames for the major stages of
the complaint process.'' \1099\
---------------------------------------------------------------------------
\1099\ 2001 Guidance at 20.
---------------------------------------------------------------------------
Changes: None.
Opposition--Lack of Specified Time Limit
Comments: Many commenters expressed opposition to Sec.
106.45(b)(1)(v) because of concerns about the absence of specific time
frames for completing investigations and adjudications, including
appeals. Commenters asserted that schools could delay investigations
indefinitely or for unspecified periods of time and that students might
wait months or years for resolution of their complaint. Commenters
identified a number of other drawbacks they felt would result from
uncertain, indefinite time frames with possible delays. Commenters
asserted that this provision would: Make it less likely that survivors
will report, less likely parties will receive justice, and more likely
that students will lose faith in the reporting process; eliminate the
mechanism for discovering and correcting harassment as early and
effectively as possible; result in inconsistent resolution time frames
at different schools; and only further delay the already lengthy
process to reach resolution of sexual misconduct cases (for example,
long unexplained delays even under the prior guidance with a 60-day
time frame). Some commenters noted other concerns about the proposed
time frames and potential delays or extensions.
Commenters asserted that indefinite time frames and probable delays
would create uncertainty and a longer process that would harm
survivors' well-being, safety, and education, and subject them to
unreasonable physical, mental, time, and cost demands. Some felt that
the proposal would: Deny due process; exacerbate survivors' emotional
distress; heighten the chances survivors would drop their cases or drop
out of school as investigations drag on; increase risks of self-harm or
suicide as delays might take too long for schools to provide prompt
supports; prolong the period of survivors' exposure to their attackers;
and add costs for counseling services or medical assistance, which
would especially burden low-income students. Other commenters
emphasized their belief that the indefinite time frames and delays
would harm the mental health and education of both complainants and
respondents, by adding uncertainty and stress for lengthy periods
without resolution, exoneration, or closure. Other commenters expressed
concerns about increasing safety risks to all students by allowing a
hostile environment to continue unchecked, and assailants to harass,
assault, or retaliate against their victims or others during the long
waiting period. One commenter expressed concern that the NPRM would
permit delays even when a respondent poses a clear threat to the campus
community.
Some commenters contended that delays or extensions may result in:
Information, memory, and witnesses being lost; less, lost, or corrupted
evidence, including fewer witnesses who may no longer be available or
on campus (for example, students or short-term staff); and parties who
have left school or graduated impairing schools from investigating or
resolving concerns. Other commenters believed that a lengthier process
and delays would: Signal that schools do not care about the safety or
education of victims; make it more likely that a victim will be
identified or lose confidentiality; force survivors to rely on
supportive measures for longer than they may be adequate or effective;
allow a respondent's refusal to cooperate to
[[Page 30269]]
delay a case indefinitely; permit recipients to place respondents on
administrative leave to further delay an investigation; and
particularly harm schools' short-term staff or contractors. A few
commenters asserted that delays have increased in resolving Title IX
cases since the Department withdrew the 2011 Dear Colleague Letter, and
at least one commenter expressed concern that the Department failed to
offer data that a 60-day time frame had compromised accuracy and
fairness.
Discussion: The Department disagrees that this provision allows
recipients to conduct grievance processes without specified time
frames, or allows indefinite delays. This provision specifically
requires a recipient's grievance process to include reasonably prompt
time frames; thus, a recipient must resolve each formal complaint of
sexual harassment according to the time frames the recipient has
committed to in its grievance process. Any delays or extensions of the
recipient's designated time frames must be ``temporary'' and
``limited'' and ``for good cause'' and the recipient must notify the
parties of the reason for any such short-term delay or extension. This
provision thus does not allow for open-ended or indefinite grievance
processes.
Under existing regulations at 34 CFR 106.8(b), in effect since
1975, recipients have been required to ``adopt and publish grievance
procedures providing for prompt and equitable resolution of student and
employee complaints alleging'' sex discrimination. The final
regulations require more of recipients than do existing regulations,
because Sec. 106.45(b)(1)(v) requires recipients to include
``reasonably prompt time frames'' in the recipient's grievance process,
rather than simply ``providing for prompt'' resolution. Further, the
final regulations specify that the time frames designated by the
recipient must account for conclusion of the entire grievance process,
including appeals and any informal resolutions processes. Thus, no
avenue for handling a formal complaint of sexual harassment is subject
to an open-ended time frame.
Any time frame included by the recipient must be ``reasonably
prompt,'' where the reasonableness of the time frame is evaluated in
the context of the recipient's operation of an education program or
activity. The Department believes that conclusion of the grievance
process must be reasonably prompt, because students (or employees)
should not have to wait longer than necessary to know the resolution of
a formal complaint of sexual harassment; any grievance process is
difficult for both parties, and participating in such a process likely
detracts from students' ability to focus on participating in the
recipient's education program or activity. Furthermore, victims of
sexual harassment are entitled to remedies to restore or preserve equal
access to education, and while supportive measures should be
implemented as appropriate designed to achieve the same ends while a
grievance process is pending, remedies after a respondent is found
responsible may consist of measures not permissible as supportive
measures. Thus, prompt resolution of a formal complaint of sexual
harassment is necessary to further Title IX's non-discrimination
mandate. At the same time, grievance processes must be fair and lead to
reliable outcomes, so that sexual harassment in a recipient's education
program or activity is accurately identified and remedied. The final
regulations prescribe procedures and protections throughout the Sec.
106.45 grievance process that the Department has concluded are
necessary to ensure fairness and accuracy. The Department believes that
each recipient is in the best position to balance promptness with
fairness and accuracy based on the recipient's unique attributes and
the recipient's experience with its own student disciplinary
proceedings, and thus requires recipients to include ``reasonably
prompt time frames'' for conclusion of a grievance process that
complies with these final regulations.
The Department acknowledges that withdrawn Department guidance
referred to a 60-day time frame for sexual harassment complaints. For
recipients who determine that 60 days represents a reasonable time
frame under which that recipient can conclude a grievance process that
complies with Sec. 106.45, a recipient has discretion to include that
time frame under the final regulations. For recipients who determine
that a shorter or longer period of time represents the time frame under
which the recipient can conclude a grievance process, the recipient has
discretion to include that time frame. The Department emphasizes that
what a recipient selects as a ``reasonable'' time frame is judged in
the context of the recipient's obligation to provide students and
employees with education programs and activities free from sex
discrimination, so that the recipient's selection of time frames must
reflect the goal of resolving a grievance process as quickly as
possible while complying with the procedures set forth in Sec. 106.45
that aim to ensure fairness and accuracy. Because the final regulations
allow short-term delays and extensions for good cause, recipients need
not base designated time frames on, for example, the most complex,
time-consuming investigation that a formal complaint of sexual
harassment might present. Rather, the recipient may select time frames
under which the recipient is confident it can conclude the grievance
process in most situations, knowing that case-specific complexities may
be accounted for with factually justified short-term delays and
extensions.
Commenters correctly noted that this provision allows different
recipients to select different designated time frames and thus a
grievance process may take longer at one school than at another. The
Department believes that each recipient's commitment to a designated,
reasonable time frame known to its students and employees,\1100\ where
each recipient has determined what time frame to designate by
considering its own unique educational community and operations, is
more effective than imposing a fixed time frame across all recipients
because it results in each recipient being held accountable for
complying with time frames the recipient has selected (and made known
to its educational community), while ensuring that all recipients
select time frames that are reasonably prompt.
---------------------------------------------------------------------------
\1100\ Section 106.45(b)(1)(v) (requiring a recipient's
grievance process to designate reasonably prompt time frames); Sec.
106.8 (requiring recipients to notify students and employees (and
others) of its non-discrimination policy and its grievance process
for resolution of formal complaints of sexual harassment).
---------------------------------------------------------------------------
The non-exhaustive list in Sec. 106.45(b)(1)(v) of factors that
may constitute good cause for short-term delays or extensions of the
recipient's designated time frames relate to the fundamental fairness
of the proceedings. Delays caused solely by administrative needs, for
example, would be insufficient to satisfy this standard.\1101\
Furthermore, even where good cause exists, the final regulations make
clear that recipients may only delay the grievance process on a
temporary basis for a limited time. A respondent (or other party,
advisor, or witness) would not be able to indefinitely delay a Title IX
proceeding by refusing to cooperate. While recipients must attempt to
accommodate the schedules of parties and witnesses throughout the
grievance
[[Page 30270]]
process in order to provide parties with a meaningful opportunity to
exercise the rights granted to parties under these final regulations,
it is the recipient's obligation to meet its own designated time
frames, and the final regulations provide that a grievance process can
proceed to conclusion even in the absence of a party or witness.
---------------------------------------------------------------------------
\1101\ The Department notes that temporary delay of a hearing
caused by a recipient's need to provide an advisor to conduct cross-
examination on behalf of a party at a hearing as required under
Sec. 106.45(b)(6)(i) may constitute good cause rather than mere
administrative convenience, although a recipient aware of that
potential obligation ought to take affirmative steps to ascertain
whether a party will require an advisor provided by the recipient or
not, in advance of the hearing, so as not to delay the proceedings.
---------------------------------------------------------------------------
The Department understands commenters' concerns that the longer a
grievance process is pending, the more risk there is of loss of
information, evidence, and availability of witnesses. These concerns
are addressed through requiring that a grievance process is concluded
within a ``reasonably prompt'' time frame, yet in a manner that applies
procedures designed to ensure fairness and accuracy. Administrative
leave under Sec. 106.44(d) of the final regulations would not preclude
an investigation from proceeding; regardless of whether a party has
been voluntarily or involuntarily separated from the recipient's
campus, the recipient can provide for the party to return to
participate in the grievance process, including with safety measures in
place for the other parties and witnesses. Under Sec. 106.45(b)(6)(i)
a postsecondary institution has discretion to hold a live hearing
virtually, or to allow any participant to participate remotely, using
technology. Where a party refuses to participate, the recipient may
still proceed with the grievance process (though the recipient must
still send to a party who has chosen not to participate notices
required under Sec. 106.45; for instance, a written notice of the
date, time, and location of a live hearing).
The Department disagrees that Sec. 106.45(b)(1)(v) will jeopardize
the safety of complainants or the educational environment, or that
complainants will feel deterred from filing formal complainants because
the grievance process might drag on indefinitely. As noted above,
supportive measures designed to protect safety and deter sexual
harassment are available during the pendency of the grievance
process.\1102\ Furthermore, under Sec. 106.44(c) recipients may remove
a respondent on an emergency basis without awaiting conclusion of a
grievance process. As also noted above, the final regulations do not
permit any recipient's grievance process to go on indefinitely.
---------------------------------------------------------------------------
\1102\ Section 106.30 (defining ``supportive measures''); Sec.
106.44(a) (requiring recipients to offer supportive measures to
complainants, with or without the filing of a formal complaint).
---------------------------------------------------------------------------
With respect to a commenter's assertion that the Department did not
provide data to show that the 60-day time frame has compromised
accuracy and fairness, commenters on behalf of complainants and
respondents have noted that the grievance process often takes too long,
which may indicate that a 60-day time frame was not a reasonable
expectation for recipients to conclude a fair process, and some
comments on behalf of recipients expressed that many of the cases that
go through a Title IX proceeding present complex facts that require
more than 60 days for a recipient to conclude a fair process. For
recipients who determine that 60 days (or less) is a reasonable time
frame under which to conclude a fair process, recipients may designate
such a time frame as part of their Sec. 106.45 grievance process.
Changes: To ensure that reasonably prompt time frames are included
for every stage of a grievance process, we have revised Sec.
106.45(b)(1)(v) of the final regulations to apply the reasonably prompt
time frame requirement to informal resolution processes, if recipients
choose to offer them, and we have removed the phrase ``if the recipient
offers an appeal'' because under the final regulations, Sec.
106.45(b)(8), appeals are mandatory, not optional.
Effects on Recipients
Comments: Other commenters expressed opposition to Sec.
106.45(b)(1)(v) because they believed it would weaken schools'
accountability and incentives for prioritizing sexual harassment
complaints and would increase the chances that reports are brushed
under the rug or not promptly and appropriately handled. Some
commenters noted concerns that the provision is too vague to be clear,
effective, and enforceable, and would give schools too much leeway to
decide what is reasonably prompt. Other commenters expressed concern
that schools already have incentives to delay, such as to protect their
reputations or resources, and so might drag out investigations until
one or both parties graduate, a survivor drops the case, or until after
a season ends or a major game is played, in cases involving athletes. A
number of commenters called for set time frames for clearer
expectations and accountability. One commenter felt that a set time
frame would also leave schools less vulnerable to lawsuits or
complaints.
Discussion: The Department does not believe that this provision
perversely incentivizes recipients to sweep allegations of sexual
harassment under the rug, gives recipients the freedom to simply
indefinitely delay proceedings against the interests of fairness and
justice, or increases the risk of litigation against recipients. The
Department believes that Sec. 106.45(b)(1)(v) strikes an appropriate
balance between imposing clear constraints on recipients in the
interests of achieving Title IX's purpose, and ensuring they have
adequate flexibility and discretion to select reasonably prompt time
frames in a manner that each recipient can apply within its own unique
educational environment. We also believe that moving away from a strict
timeline that does not permit short-term extensions will help to
address pitfalls and implementation problems that commenters have
recounted in recipients' Title IX proceedings under the previous
guidance, where some recipients felt pressure to resolve their
grievance processes within 60 days regardless of the circumstances of
the situation. The Department believes that recipients are in the best
position to balance the interests of promptness, and fairness and
accuracy, within the confines of such a decision resulting in
``reasonably prompt'' conclusion of grievance processes. This provision
does not permit a recipient to conduct a grievance process without a
``set'' time frame; to the contrary, this provision requires a
recipient to designate and include in its grievance process what its
set time frame will be, for each phase of the grievance process
(including appeals and any informal resolution process). Permitting
recipients to set their own reasonably prompt time frames increases the
likelihood that recipients will meet the time frames they have
designated and thereby more often meet the expectations of students and
employees as to how long a recipient's grievance process will take.
Requiring recipients to notify the parties whenever the recipient
applies a short-term delay or extension will further promote
predictability and transparency of recipients' grievance process.
Prescribing that any delay or extension must be for good cause, and
must be temporary and limited in duration, ensures that no grievance
process is open-ended and that parties receive a reasonably prompt
resolution of each formal complaint.
Changes: None.
Concerns Regarding Concurrent Law Enforcement Activity
Comments: Some commenters opposed to this provision emphasized
concerns about permitting delay for concurrent ongoing criminal
investigations. Commenters asserted
[[Page 30271]]
that criminal investigations can and often do take months or years
because of rape kit backlogs or lengthy DNA analyses, and expressed
concern about allowing schools to delay action for unspecified and
lengthy periods. These commenters felt this would force students to
wait months or longer for resolution as they suffer serious emotional
and academic harm when they need timely responses and support to
continue in school and to heal from their trauma. Some commenters felt
that it would deny due process in school Title IX proceedings, ignore
schools' independent Title IX obligations to remedy sex-based
harassment, and allow perpetrators to evade responsibility or
consequences or to perpetrate again. A number of commenters were
concerned that schools delaying or suspending investigations at the
request of law enforcement or prosecutors creates a safety risk to the
survivor and to other students, by allowing assailants to harass or
assault survivors or others during the waiting period. Commenters also
asserted that Title IX and criminal justice proceedings have different
purposes, considerations, rules of evidence, burdens of proof, and
outcomes, and felt as a result that their determinations are separate
and independent from each other. Some of these commenters also argued
that schools should prioritize and not delay a complainant's
educational access and can provide supportive measures that are not
available from the police.
A number of commenters emphasized concerns about problematic
incentives and consequences that they believed would result from
permitting delays for concurrent ongoing criminal investigations. For
example, some commenters felt that such a provision would incentivize
survivors not to report to law enforcement, since it would delay
resolution of their Title IX case, thereby increasing safety risks to
both survivors and school communities. Other commenters believed this
provision would force survivors who pursue a police investigation to
wait a long time for it to end before receiving accommodations from
their school or to drop their criminal case to get measures only
schools can provide. At least one commenter expressed concern that
students would be forced to bring civil cases to protect themselves
during a criminal investigation. Many others asserted that it would
force elementary and secondary school students to wait months or even
longer for any resolution to their complaints as most school employees
are legally required to report child sexual abuse to the police as
mandatory reporters. A number of these commenters expressed concern
that this might impede elementary and secondary schools from
implementing critical safety measures for child victims until a
criminal investigation is completed.
Discussion: We acknowledge the concerns raised by some commenters
specifically relating to recipients' flexibility under Sec.
106.45(b)(1)(v) to temporarily delay the grievance process due to
concurrent law enforcement activity. The Department acknowledges that
the criminal justice system and the Title IX grievance process serve
distinct purposes. However, the two systems sometimes overlap with
respect to allegations of conduct that constitutes sex discrimination
under Title IX and criminal offenses under State or other laws. By
acknowledging that concurrent law enforcement activity may constitute
good cause for short-term delays or extensions of a recipient's
designated time frames, this provision helps recipients navigate
situations where a recipient is expected to meet its Title IX
obligations while intersecting with criminal investigations that
involve the same facts and parties. For example, if a concurrent law
enforcement investigation uncovers evidence that the police plan to
release on a specific time frame and that evidence would likely be
material to the recipient's determination regarding responsibility,
then the recipient may have good cause for a temporary delay or limited
extension of its grievance process in order to allow that evidence to
be included as part of the Title IX investigation. Because the final
regulations only permit ``temporary'' delays or ``limited'' extensions
of time frames even for good cause such as concurrent law enforcement
activity, this provision does not result in protracted or open-ended
investigations in situations where law enforcement's evidence
collection (e.g., processing rape kits) occurs over a time period that
extends more than briefly beyond the recipient's designated time
frames.\1103\
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\1103\ E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477 F.3d 1282\,\ 1297 (11th Cir. 2007) (``[T]he pending criminal
charges did not affect [the university's] ability to institute its
own procedures'' and did not justify university waiting 11 months
for outcome of the criminal matter before finishing its own
investigation and conducting its own disciplinary proceeding against
sexual misconduct respondents).
---------------------------------------------------------------------------
In response to commenters concerned that concurrent law enforcement
activity is prevalent especially in sexual misconduct situations in
elementary and secondary schools (where mandatory child abuse reporting
laws often require reporting sexual misconduct to law enforcement),
Sec. 106.45(b)(1)(v) benefits recipients and young victims in such
situations by allowing circumstance-driven flexibility for schools and
law enforcement to coordinate efforts so that sexual abuse against
children is effectively addressed both in terms of the purposes of the
criminal justice system and Title IX's non-discrimination mandate.
While a grievance process is pending, recipients may (and must, if
refusing to do so is clearly unreasonable under the circumstances)
implement supportive measures designed to ensure a complainant's equal
access to education, protect the safety of parties, and deter sexual
harassment.
Changes: None.
Consistency With Other Federal Law
Comments: Some commenters raised concerns that allowing temporary
delays or limited extensions conflicts with Title IX and Clery Act
requirements that schools provide ``prompt'' resolution of complaints.
Similarly, some commenters felt that permitting extensions for language
assistance or disability accommodations is inconsistent with statutory
obligations to provide these in a timely manner under Title VI, the
Equal Educational Opportunities Act of 1974 (``EEOA''), ADA, and
Section 504. Commenters also expressed concerns that the final
regulations would permit delays for far longer than is permitted of
employers under Title VII.
Discussion: Section 106.45(b)(1)(v) requires recipients to have
good cause for any short-term delays or extensions, with written notice
to the parties and an explanation for the delay or extension. Because
the overall time frame must be reasonably prompt, and any delay or
extension must be temporary or limited, Sec. 106.45(b)(1)(v) poses no
conflict with the Clery Act or other laws that require ``prompt''
resolution of processes designed to redress sexual harassment or sex
offenses.\1104\ Neither does application of short-term delays or
extensions violate the ``promptness'' requirement that Title IX
regulations have required since 1975; under the final regulations the
grievance process still must be concluded in a ``reasonably prompt''
time frame and any delay or extension, even for good cause, may only be
brief in length.
---------------------------------------------------------------------------
\1104\ For further discussion see the ``Clery Act'' subsection
of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------
Recipients must still satisfy their legal obligation to provide
timely auxiliary
[[Page 30272]]
aids and services and reasonable accommodations under the ADA, Section
504, and Title VI, and should reasonably consider other services such
as meaningful access to language assistance. With respect to the EEOA,
Title VII, or other laws that may impose time frames on the same
grievance process that recipients must apply under Sec. 106.45, these
final regulations permit a recipient to apply short-term delays or
extensions for good cause. These final regulations do not require a
recipient to apply short-term delays or extensions, and thus if a
recipient is precluded by another law from extending a time frame the
recipient is not required to do so under these final regulations.
Changes: None.
Alternative Proposals
Comments: A number of commenters suggested alternative approaches
to address their concerns about the proposed time frames. Commenters
also suggested other approaches such as: Eliminating any time frame
requirement for recipients; barring delays due to an ongoing criminal
investigation; prohibiting extensions for refusal to cooperate, lack of
witnesses, or the need for language assistance or accommodation of
disabilities; setting a time limit for law enforcement delays that is
brief, such as three to ten days; setting a time limit for temporary
delays and allowing delays for concurrent law enforcement activity only
if requested by external municipal entities to gather evidence and for
not more than ten days except when specifically requested and
justified; and narrowing delay for law enforcement activity to only
when absolutely necessary like when a school cannot proceed without
evidence in law enforcement's exclusive domain (for example, a DNA
sample to identify an unknown assailant). Other suggestions raised by
commenters included: Requiring supportive measures while criminal and
school investigations are ongoing; and ensuring schools and criminal
justice agencies set protocols for concurrent investigations that are
responsive to the complexity of these situations and to each entity's
duties and timelines.
Discussion: The Department believes that recipients are in the best
position to designate ``reasonably prompt time frames'' that balance
the need to conclude Title IX grievance processes promptly with
providing the fairness and accuracy that these final regulations
require. For reasons discussed above, prompt resolution is important to
serve the purpose of Title IX's non-discrimination mandate, and the
Department thus declines to remove the requirement that recipients
conclude grievance processes promptly. For reasons discussed above, the
Department believes that categorically prohibiting delays based on
concurrent law enforcement investigations would deprive recipients of
flexibility to work effectively and appropriately with law enforcement
where the purpose of both the criminal justice system and the Title IX
grievance process is to protect victims of sexual misconduct, and this
discretion is appropriately balanced by not permitting a recipient to
apply a delay or extension (even for good cause) that is not
``temporary'' or ``limited.'' For similar reasons, the Department
declines to specify a particular number of days that constitute
``temporary'' delays or ``limited'' extensions of time frames. State
laws that do specify such maximum delays may be complied with by
recipients without violating these final regulations, because Sec.
106.45(b)(1)(v) allows but does not require a recipient to implement
short-term delays even for good cause. The Department also reiterates
that nothing in the final regulations precludes recipients from
offering supportive measures to one or both parties while the grievance
process is temporarily delayed, and revised Sec. 106.44(a) obligates a
recipient to offer supportive measures to complainants, with or without
a grievance process pending.
The Department declines to allow short-term delays on the basis of
working with a concurrent law enforcement effort only where the law
enforcement agency specifically requests that the recipient delay, or
only where the school and law enforcement agency have a memorandum of
understanding or similar cooperative agreement in place. Recipients'
obligations under Title IX are independent of recipients' obligations
to cooperate or coordinate with law enforcement with respect to
investigations or proceedings affecting the recipient's students or
employees. These final regulations do not attempt to govern the
circumstances where such cooperation or coordination may be required
under other laws, or advisable as a best practice, but Sec.
106.45(b)(1)(v) gives recipients flexibility to address situations that
overlap with law enforcement activities so that potential victims of
sex offenses are better served by both systems while ensuring that a
recipient's grievance process is not made dependent on a concurrent law
enforcement investigation, and thus a Title IX grievance process will
still be concluded promptly even if the law enforcement matter is still
ongoing.
Changes: None.
Clarification Requests
Comments: Commenters requested clarifications of certain terms used
in this provision, including the terms reasonably prompt, absence of
the parties or witnesses, administrative delay, limited extensions, and
temporary delay. Commenters also requested clarification as to what
does or does not constitute good cause for delay, such as with respect
to administrative needs or accommodation of disabilities, as well as
when and for how long schools should delay for law enforcement
activity. Some commenters asked for more clarity about the limits on
extensions, the mechanisms to end delays when the advantages are
outweighed by the benefits of resolution, the steps schools must take
to protect students regardless of law enforcement activity, and what
OCR will assess in determining if a grievance process is prompt. Other
commenters asked for a clarification that the list of examples of good
cause for delay are not exhaustive, and several commenters requested
clarifying that schools can excuse complainants from participating in
the process for study abroad or other academic programming involving a
significant time away from campus.
Discussion: As clarified above, the Department believes that
recipients should retain flexibility to designate time frames that are
reasonably prompt, and what is ``reasonable'' is a decision made in the
context of a recipient's purpose of providing education programs or
activities free from sex discrimination, thus requiring recipients to
designate time frames taking into account the importance to students of
resolving grievance processes so that students may focus their
attention on participating in education programs or activities, and the
reality that every academic term (e.g., an academic quarter, semester,
trimester, etc.) is important to a student's progress toward advancing
a grade level or completing a degree. A recipient must balance the
foregoing realities with the need for recipients to conduct grievance
processes fairly in a manner that reaches reliable outcomes, meeting
the requirements of Sec. 106.45, in deciding what time frames to
include as ``reasonably prompt'' in a recipient's grievance process for
formal complaints of sexual harassment under Title IX.
This provision's reference to the absence of parties or witnesses
has its ordinary meaning, suggesting that the reasons for a party or
witness's absence
[[Page 30273]]
is a factor in a recipient deciding whether circumstances constitute
``good cause'' for a short-term delay or extension. With respect to
administrative delay, we intend that concept to include delays caused
by recipient inefficiencies or mismanagement of their own resources,
but not necessarily circumstances outside the recipient's control
(e.g., if technology relied on to conduct a live hearing is interrupted
due to a power outage). We intend delay to have its ordinary meaning; a
delay is a postponement of a deadline that would otherwise have
applied. We appreciate the opportunity to clarify here that the
examples of good cause listed in Sec. 106.45(b)(1)(v) of the final
regulations are illustrative, not exhaustive. We defer to recipients'
experience and familiarity with the cases recipients investigate to
determine whether other factual circumstances present good cause that
could justify extending the time frame. Further, we wish to emphasize
that any delay or extension contemplated by Sec. 106.45(b)(1)(v) must
be on a limited and temporary basis, regardless of the good cause that
exists. The Department trusts recipients to make sound determinations
regarding the length of a brief delay; we believe recipients are in the
best position to make these decisions as they may be closer to the
parties and have a deeper understanding of how to balance the interests
of promptness, fairness to the parties, and accuracy of adjudications
in each case. As noted above, a recipient's response to sexual
harassment must include offering supportive measures to a complainant
(with or without a grievance process pending). While a recipient is not
obligated in every situation to offer supportive measures to a
respondent, if refusing to offer supportive measures to a respondent
(for instance, where a live hearing date that falls on a respondent's
final examination date results in a respondent needing to reschedule
the examination) would be clearly unreasonable in light of the known
circumstances such a refusal could also violate these final
regulations.
Changes: None.
Section 106.45(b)(1)(vi) Describe Range or List of Possible Sanctions
and Remedies
Comments: Several commenters support this provision because it
furthers due process. One commenter supported Sec. 106.45(b)(1)(vi)
because it will increase parties' understanding of the proceedings and
decrease the possibility of arbitrary, disproportionate, or
inconsistent sanctions. A group of concerned attorneys and educators
commented that consistent standards, such as this provision, are
necessary to ensure a fair process will benefit everyone. Another
commenter expressed support for Sec. 106.45(b)(1)(vi) because it
promotes parity between parties; requiring recipients' grievance
procedures to contain significant specificity is key because
individuals must have a clear understanding of the procedures and
possible penalties for wrongdoing. One commenter agreed that full and
proper notice to all students, faculty, and other personnel is critical
to the effective implementation of Title IX and therefore consistent
with due process, so a recipient's grievance procedures must describe
the range of possible sanctions and remedies that the recipient may
implement following any determination of responsibility.
Discussion: The Department agrees with commenters that it is
important to provide to all students, faculty, and other personnel a
clear understanding of the possible remedies and sanctions under a
recipient's Title IX grievance process. The Department agrees with
commenters who asserted that Sec. 106.45(b)(1)(vi) furthers due
process protections for both parties and lessens the likelihood of
ineffective remedies and arbitrary, disproportionate, or inconsistent
disciplinary sanctions. For consistency of terminology, the final
regulations use ``disciplinary sanctions'' rather than ``sanctions''
including in this provision, to avoid ambiguity as to whether a
``sanction'' differed from a ``disciplinary sanction.'' Throughout the
NPRM and these final regulations, where reference is made to
disciplinary sanctions, the provisions are calling attention to the
disciplinary nature of the action taken by the recipient, and the
phrase ``disciplinary sanctions'' is thus more specific and accurate
than the word ``sanctions.'' Because the intent of this provision is to
provide clarity for recipients and their educational communities, we
have also revised this provision to state that the recipient's
grievance process must describe ``or list'' the range of disciplinary
sanctions, to clarify that complying with this provision also complies
with the Clery Act.\1105\
---------------------------------------------------------------------------
\1105\ For further discussion see the ``Clery Act'' subsection
of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------
Changes: We have revised the final regulations to use the phrase
``disciplinary sanctions'' consistently, replacing ``sanctions'' with
``disciplinary sanctions'' in provisions such as Sec.
106.45(b)(1)(vi). We have also revised Sec. 106.45(b)(1)(vi) to state
that a recipient may describe the range of possible sanctions and
remedies or list the possible disciplinary sanctions and remedies that
the recipient may implement following any determination of
responsibility.
Comments: A number of commenters opposed Sec. 106.45(b)(1)(vi).
One commenter expressed concern that this provision is too restrictive
because disciplinary actions are often implemented in a number of
creative ways that are specific to each individual case. One commenter
expressed concern that the proposed regulations, including this
provision, are unconstitutional, since the decisions to be made by the
``decision-maker'' determining responsibility and sanctions against a
student are those that must be made by the judicial branch of
government acting under Article III of the U.S. Constitution, and not
by the executive branch, or by the recipient.
Several commenters expressed concern that recipients should not be
required to describe a range of sanctions. One commenter expressed
concern that each type of employee at their university has their own
grievance procedures and penalties and appeals process, and the
university does not have the expertise to know in certain circumstances
how a faculty member's tenure would be implicated. One university
commented that notice of investigation letters may exacerbate tense
situations because the practice will be to describe every possible
sanction, including termination, even when the possibility of some
sanctions is remote or would contravene good practice.
Several commenters proposed modifications to Sec.
106.45(b)(1)(vi). One commenter urged the Department to offer examples
of the types of remedies it would find equitable, and the types of
sanctions it would find acceptable, asserting that at a minimum, the
Department should make clear that it defers to the educational judgment
of schools to take into consideration the myriad factors impacting the
elementary and secondary school environment, from age to developmental
level and beyond, in implementing the ``equitability'' requirement. One
commenter suggested the language be altered due to the importance of
ensuring that any sanction imposed be proportional to the offense
committed, and noted that this principle reflects our societal
understanding of punishment, as reflected in the U.S. Constitution's
prohibition on ``cruel and unusual punishment.'' The commenter argued
that the proposed language would allow
[[Page 30274]]
minor violations of university policy to be punished in extreme,
disproportionate ways and would also allow for different violations to
be punished in the same manner as long as the punishment had been
described in the grievance process. One commenter suggested that this
provision should be altered to clarify that collective punishment is
unacceptable to the extent that it punishes individuals or
organizations that did not perpetrate, or were not found responsible
for perpetrating, the offense in question.
One commenter suggested that recipients should be required to list
any factors that will or will not be considered in issuing a sanction.
One commenter suggested the Department should make clear how specific
the range of sanctions must be and that recipients be permitted to
state, for example, ``suspension of varying lengths'' rather than
having to itemize every possible length of a suspension.
Discussion: The Department proposed Sec. 106.45(b)(1)(vi) to
provide consistency, predictability, and transparency as to the range
of consequences (both in terms of remedies for complainants, and
disciplinary sanctions for respondents) students can expect from the
outcome of a grievance process. A transparent grievance process
benefits all parties because they are more likely to trust in, engage
with, and rely upon the process as legitimate. After a respondent has
been found responsible for sexual harassment, any disciplinary sanction
decision rests within the discretion of the recipient, and the
recipient must provide remedies to the complainant designed to restore
or preserve the complainant's educational access, as provided for in
Sec. 106.45(b)(1)(i). Both parties should be advised of the potential
range of remedies and disciplinary sanctions.
The Department disagrees that the decision-maker imposing
disciplinary sanctions must be a judge appointed under Article III of
the Constitution. As discussed in the ``Adoption and Adaption of the
Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble, Title IX is a Federal civil rights law, and the Supreme
Court has judicially implied a private right of action under Title IX,
and in private litigation in Federal courts a Federal judge may impose
remedies to effectuate the purposes of Title IX. However, the Title IX
statute expressly authorizes Federal agencies, such as the Department,
to administratively enforce Title IX and require recipients to take
remedial action following violations of Title IX or regulations
implementing Title IX. Such administrative enforcement of Title IX does
not require the participation or direction of an Article III Federal
judge. In these final regulations, the Department has determined that
the Department's interest in effectuating Title IX's non-discrimination
mandate necessitates setting forth a predictable, fair grievance
process for resolving allegations of Title IX sexual harassment and
requiring recipients to provide remedies to complainants if a
respondent is found responsible. The Department has determined that
administrative enforcement of Title IX does not require overriding
recipients' discretion to make decisions regarding disciplinary
sanctions, and thus these final regulations focus on ensuring that
respondents are not punished or disciplined unless a fair process has
determined responsibility, but respects the discretion of State and
local educators to make disciplinary decisions pursuant to a
recipient's own code of conduct.
The Department acknowledges commenters' concerns that each type of
employee at their university has their own grievance procedures,
penalties, and appeals process as well as concerns about whether tenure
may be implicated, but disagrees that this presents a problem under
Sec. 106.45(b)(1)(vi). The Department believes that simply providing a
range of sanctions to respondents is feasible despite the reality of
the different grievance procedures and penalties and appeals that may
apply depending on whether a recipient's employee is tenured, and the
final regulations permit the recipient to either list the possible
disciplinary sanctions or describe the range of possible disciplinary
sanctions. Describing a range of disciplinary sanctions should not be
difficult for recipients, particularly regarding a maximum sanction.
Nothing in the final regulations prevents the recipient from
communicating that the described range is required by Federal law under
Title IX and that the published range is purely for purposes of notice
as to the possibility of a range of remedies and disciplinary sanctions
and does not reflect the probability that any particular outcome will
occur.
The Department does not believe offering examples of types of
appropriate disciplinary sanctions is necessary because as discussed
above, whether and what type of sanctions are imposed is a decision
left to the sound discretion of recipients. Similarly, these final
regulations do not impose a standard of proportionality on disciplinary
sanctions. Some commenters raised concerns that disciplinary sanctions
against respondents found responsible are too severe, not severe
enough, or that student discipline should be an educational process
rather than a punitive process. These final regulations permit
recipients to evaluate such considerations and make disciplinary
decisions that each recipient believes are in the best interest of the
recipient's educational environment. Because the recipient's grievance
process must describe the range, or list the possible, disciplinary
sanctions and remedies, a recipient's students and employees will
understand whether the recipient has, for example, decided that certain
disciplinary sanctions or certain remedies are not available following
a grievance process. This clarity gives potential complainants a sense
of what a recipient intends provide in terms of remedies and potential
respondents a sense of what a recipient is prepared to impose in terms
of disciplinary sanctions, with respect to victimization and
perpetration of Title IX sexual harassment.
Because remedies are required under the final regulations, the
Department agrees with commenters who suggested more clarity as to what
constitute possible remedies. The final regulations revise another
provision, Sec. 106.45(b)(1)(i), to specify that remedies designed to
restore or preserve equal access to the recipient's education program
or activity may include the same individualized services described in
Sec. 106.30 ``supportive measures,'' but that remedies need not be
non-disciplinary or non-punitive and need not avoid burdening the
respondent. The Department believes this level of specificity is
sufficient to emphasize that remedies aim to ensure a complainant's
equal educational access. As discussed in the ``Adoption and Adaption
of the Supreme Court's Framework to Address Sexual Harassment'' section
of this preamble, a recipient's choice of remedies will be evaluated
under the deliberate indifference standard.
With respect to a recipient punishing an organization or group of
individuals following a member of the organization or group being found
responsible for sexual harassment, these final regulations require a
recipient to respond to sexual harassment incidents in specific ways,
including by investigating and adjudicating allegations of sexual
harassment made in a formal complaint. The final regulations only
contemplate adjudication of allegations against a respondent (defined
in Sec. 106.30 as an
[[Page 30275]]
``individual,'' not a group or organization). In order for a respondent
to face disciplinary sanctions under the final regulations, the
respondent must be brought into the grievance process through a formal
complaint alleging conduct that could constitute sexual harassment
defined in Sec. 106.30.\1106\ The final regulations do not address
sanctions by a recipient imposed against groups for non-sexual
harassment offenses.
---------------------------------------------------------------------------
\1106\ Emergency removal under Sec. 106.44(c) is an exception
that allows punitive action (i.e., removal from education programs
or activities) against a respondent without going through a
grievance process.
---------------------------------------------------------------------------
By describing the range, or listing the possible disciplinary
sanctions, a recipient is notifying its community of the possible
consequences of a determination that a respondent is responsible for
Title IX sexual harassment; this provision is thus intended to increase
the transparency and predictability of the grievance process, but it is
not intended to unnecessarily restrict a recipient's ability to tailor
disciplinary sanctions to address specific situations. We therefore
decline to state that the range or list provided by the recipient under
this provision is exclusive. For similar reasons, we decline to require
a recipient to state what factors might be considered with respect to
decisions regarding disciplinary sanctions or to impose more detailed
requirements in this provision than the requirement to describe a
range, or list the possible disciplinary sanctions. As described above,
in response to commenters' desire for more specificity in this
provision, the final regulations revise this provision to permit a
recipient to either ``describe the range'' or ``list the possible''
disciplinary sanctions and remedies; this change gives recipients the
option to comply with this provision in a more specific manner (i.e.,
by listing possible disciplinary sanctions and remedies rather than by
describing a range).
Changes: The final regulations revise Sec. 106.45(b)(1)(vi) to
give recipients the option to either ``describe the range of'' or
``list the possible'' disciplinary sanctions and remedies.
Section 106.45(b)(1)(vii) Describe Standard of Evidence
Comments: A number of commenters expressed support for Sec.
106.45(b)(1)(vii). One commenter stated that fully informing the
parties of the standard of evidence as part of the recipients' policies
is very important in Title IX procedures, since the respondent and the
complainant must understand how such proceedings will unfold. Other
commenters expressed support because a consistent standard of evidence
is necessary to ensure a fair process. One commenter expressed support
because this is a common-sense provision. One commenter supported Sec.
106.45(b)(1)(vii) because it will increase parties' understanding of
the proceedings and decrease the possibility of arbitrary,
disproportionate, or inconsistent decisions.
Discussion: The Department agrees that fully informing the parties
of the standard of evidence that a recipient has determined most
appropriate for reaching conclusions about Title IX sexual harassment,
by describing that standard of evidence in the recipient's grievance
process, is an important element of a fair process. The Department
agrees that a standard of evidence selected by each recipient and
applied consistently to formal complaints of sexual harassment is
necessary to ensure a fair process.\1107\
---------------------------------------------------------------------------
\1107\ E.g., Lavinia M. Weizel, The Process That Is Due:
Preponderance of The Evidence as The Standard of Proof For
University Adjudications of Student-On-Student Sexual Assault
Complaints, 53 Boston College L. Rev. 1613, 1631 (2012) (explaining
that selecting a standard of evidence (also called a standard of
proof) ``is important for theoretical and practical reasons''
including that the ``standard of proof imposed in a particular class
of cases reflects the value society places on the rights that are in
jeopardy'' because ``standards of proof signal to the fact-finder
the level of certainty society requires before the state may act to
impair an individual's rights'' and whichever standard is selected,
``articulating a specific standard of proof for a particular type of
hearing . . . helps to ensure the meaningfulness of the hearing's
other procedural safeguards'') (internal citations omitted).
---------------------------------------------------------------------------
In response to commenters who noted, under comments directed to
Sec. 106.45(b)(7), that the NPRM lacked clarity as to whether a
recipient's choice between the preponderance of the evidence standard
and the clear and convincing evidence standard was a choice that a
recipient could make in each individual case, the Department revised
language in Sec. 106.45(b)(7) and correspondingly revised language in
Sec. 106.45(b)(1)(vii) to read: ``State whether the standard of
evidence to be used to determine responsibility is the preponderance of
the evidence standard or the clear and convincing evidence standard,
apply the same standard of evidence for formal complaints against
students as for formal complaints against employees, including faculty,
and apply the same standard of evidence to all formal complaints of
sexual harassment[.]'' These revisions clarify that the standard of
evidence must be selected, stated, and applied consistently by each
recipient to all formal complaints of sexual harassment.
Changes: The final regulations revise Sec. 106.45(b)(1)(vii) to
clearly require a recipient's grievance process to state up front which
of the two permissible standards of evidence the recipient has selected
and then to apply that selected standard to all formal complaints of
sexual harassment, including those against employees.
Section 106.45(b)(1)(viii) Procedures and Bases for Appeal
Comments: Some commenters expressed general support for Sec.
106.45(b)(1)(viii), arguing that requiring recipients to specify appeal
procedures will promote a fair process that will benefit everyone and
ensure parity between the parties. Two commenters recommended that the
Department add specific language regarding when a decision may be
appealed. One commenter suggested that the Department clarify that the
parties are allowed to raise a procedural problem at the hearing
without waiting to file an appeal over the procedural breach. Another
commenter suggested that the Department add language describing the
specific instances in which a complainant or respondent is permitted to
appeal. The commenter stated that in instances where the recipient
determines the respondent to be responsible for the alleged conduct and
implements a remedy designed to restore a complainant's equal access to
the recipient's education program or activity, the complainant may
appeal the remedy as inadequate to restore the complainant's equal
access to the recipient's education program or activity to prevent its
reoccurrence, and address its adverse effects on the complainant and
others who may have been adversely affected by the sexual harassment.
The commenter further stated that in instances where the recipient
determines the respondent to be responsible for the alleged conduct,
the respondent can appeal the recipient's determination of
responsibility. The commenter explained that these should be the only
two situations in which an appeal is permitted because allowing a
complainant to appeal a recipient's determination of non-responsibility
subjects the respondent to administrative double jeopardy and
contravenes the principles of basic fairness. The commenter asserted
that this is especially troublesome for students from low-income
families with little or no access to free legal counsel.
Discussion: The Department appreciates the general support received
from commenters for Sec. 106.45(b)(1)(viii), which requires
recipients' Title IX
[[Page 30276]]
grievance process to include the permissible bases and procedures for
complainants and respondents to appeal. The Department is persuaded by
commenters that we should clarify the circumstances in which the
parties may appeal, and that both parties should have equal appeal
rights, and Sec. 106.45(b)(8) of the final regulations require
recipients to offer appeals, equally to both parties, on at least the
three following bases: (1) Procedural irregularity that affected the
outcome; (2) new evidence that was not reasonably available when the
determination of responsibility was made that could affect the outcome;
or (3) the Title IX Coordinator, investigator, or decision-maker had a
conflict of interest or bias that affected the outcome. Nothing in the
final regulations precludes a party from raising the existence of
procedural defects that occurred during the grievance process during a
live hearing, and the final regulations ensure that whether or not a
party has observed or objected to a procedural defect during the
hearing, the party may still appeal on the basis of procedural
irregularity after the determination regarding responsibility has been
made. The Department believes that a complainant entitled to remedies
should not need to file an appeal to challenge the recipient's
selection of remedies; instead, we have revised Sec. 106.45(b)(7)(iv)
to require that Title IX Coordinator is responsible for effective
implementation of remedies. This permits a complainant to work with the
Title IX Coordinator to select and effectively implement remedies
designed to restore or preserve the complainant's equal access to
education.
Complainants and respondents have different interests in the
outcome of a sexual harassment complaint. Complainants ``have a right,
and are entitled to expect, that they may attend [school] without fear
of sexual assault or harassment'' and to expect recipients to respond
promptly to complaints.\1108\ For respondents, a ``finding of
responsibility for a sexual offense can have a `lasting impact' on a
student's personal life, in addition to [the student's] `educational
and employment opportunities'[.]'' \1109\ Although these interests may
differ, each represents high-stakes, potentially life-altering
consequences deserving of an accurate outcome.\1110\
---------------------------------------------------------------------------
\1108\ Doe v. Univ. Of Cincinnati, 872 F.3d 393, 403 (6th Cir.
2017).
\1109\ Id. at 400 (internal citations omitted).
\1110\ Id. at 404 (recognizing that the complainant ``deserves a
reliable, accurate outcome as much as'' the respondent).
---------------------------------------------------------------------------
We disagree with the commenters who argued that the final
regulations should prohibit appeals of not responsible determinations
because of double jeopardy concerns. The Department emphasizes that the
constitutional prohibition on double jeopardy does not apply to Title
IX proceedings and the Department does not believe that such a
prohibition is needed to ensure fair and accurate resolution of sexual
harassment allegations under Title IX. Where a procedural error, newly
discovered evidence, or conflict of interest or bias has affected the
outcome resulting in an inaccurate determination of non-responsibility,
the recipient's obligation to redress sexual harassment in its
education program or activity may be hindered, but the recipient may
correct that inaccurate outcome on appeal and thus accurately identify
the nature of sexual harassment in its education program or activity
and provide remedies to the victim. Further, and as discussed above, we
believe that both respondents and complainants face potentially life-
altering consequences from the outcomes of Title IX proceedings. Both
parties have a strong interest in accurate determinations regarding
responsibility and it is important to protect complainants' right to
appeal as well as respondents' right to appeal. We note that the final
regulations do not require a party to hire an attorney for any phase of
the grievance process, including on appeal.
Changes: We have revised Sec. 106.45(b)(1)(viii) to remove the
``if the recipient offers an appeal'' language because Sec.
106.45(b)(8) of the final regulations make appeals for both parties
mandatory, on three bases: Procedural irregularity, newly discovered
evidence, and bias or conflict of interest on the part of the Title IX
Coordinator, investigator, or decision-maker.
Section 106.45(b)(1)(ix) Describe Range of Supportive Measures
Comments: Several commenters supported Sec. 106.45(b)(1)(ix)
requiring recipients to describe the range of supportive measures
available to complainants and respondents. Some commenters asserted
that this requirement would promote parity between the parties and
ensure a fair process that will benefit everyone. One commenter
recommended that the Department encourage recipients to retain and
maintain the names and contact information for individual groups, and
other entities that provide support in these circumstances, including
counselors, psychiatrists, law firms, and educational advocates, and
make the information available to all parties. Two commenters suggested
that the Department add language to the final regulations clarifying
that complainants and respondents must be afforded the same level of
advocacy and supportive care so that both parties are treated equally.
Another commenter was concerned that the requirement would be difficult
to meet because supportive measures are often determined on an ad hoc
basis and vary from investigation to investigation. To address this
concern, the commenter recommended that the Department instead require
grievance procedures to address the availability of supportive measures
and describe some common examples.
Discussion: The Department agrees that requiring recipients to
describe the range of supportive measures available to complainants and
respondents is an important part of ensuring that the grievance process
is transparent to all members of a recipient's educational community.
Section 106.45(b)(1)(ix), particularly, notifies both parties of the
kind of individualized services that may be available while a party
navigates a grievance process, which many commenters asserted is a
stressful and difficult process for complainants and respondents.
The Department clarifies that this provision does not require
equality or parity in terms of the supportive measures actually
available to, or offered to, complainants and respondents generally, or
to a complainant or respondent in a particular case. This provision
must be understood in conjunction with the obligation of a recipient to
offer supportive measures to complainants (including having the Title
IX Coordinator engage in an interactive discussion with the complainant
to determine appropriate supportive measures), while no such obligation
exists with respect to respondents. By defining supportive measures to
mean individualized services that cannot unreasonably burden either
party, these final regulations incentivize recipients to make
supportive measures available to respondents, but these final
regulations require recipients to offer supportive measures to
complainants. In revised Sec. 106.44(a), and in Sec. 106.45(b)(1)(i)
these final regulations reinforce that equitable treatment of
complainants and respondents means
[[Page 30277]]
providing supportive measures and remedies for complainants, and
avoiding disciplinary action against respondents unless the recipient
follows the Sec. 106.45 grievance process. The Department does not
intend, and the final regulations do not require, to impose a
requirement of equality or parity with respect to supportive measures
provided to complainants and respondents.
The Department declines to require recipients to disseminate to
students the names and contact information for organizations that
provide support in these circumstances, including counselors,
psychiatrists, law firms, educational advocates, and so forth, or make
such a list available to all parties, although nothing in these final
regulations precludes a recipient from doing so. The specific resources
available in the general community surrounding the recipient's campus
may change frequently making it difficult for recipients to accurately
list currently available resources. The Department believes that by
requiring recipients to describe the range of supportive measures made
available by a recipient as part of the recipient's grievance process,
and defining ``supportive measures'' in Sec. 106.30 (which also
includes an illustrative list of possible supportive measures), parties
will be adequately advised of the types of individualized services
available as they navigate a grievance process. A recipient may choose
to create and distribute lists of specific resources in addition to
complying with Sec. 106.45(b)(1)(ix).
The Department appreciates the commenter's concern that the
requirement would be difficult to meet because supportive measures are
often determined on an ad hoc basis and vary from investigation to
investigation. However, it is for this reason that the Department is
only requiring a recipient's grievance process to describe the range of
supportive measures available rather than a list of supportive measures
available. One commenter requested that the Department provide examples
of supportive measures. A non-exhaustive list of types of supportive
measures is stated in the definition of ``supportive measures'' in
Sec. 106.30. Recipients retain the flexibility to employ age-
appropriate methods, exercise common sense and good judgment, and take
into account the needs of the parties involved when determining the
type of supportive measures appropriate for a particular party in a
particular situation, and this flexibility is not inhibited by the
requirement to describe the range of available supportive measures in
Sec. 106.45(b)(1)(ix).
Changes: None.
Section 106.45(b)(1)(x) Privileged Information
Comments: As discussed in more detail in the ``Hearings''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble, commenters inquired whether the
Sec. 106.45 grievance process required cross-examination questions
that call for disclosure of attorney-client privileged information to
be allowed to be asked during a live hearing held by a postsecondary
institution.
Discussion: To ensure that a recipient's grievance process respects
information protected by a legally recognized privilege (for example,
attorney-client privilege, doctor-patient privilege, spousal privilege,
and so forth), the Department has added a provision addressing
protection of all privileged information during a grievance process.
Changes: We have added new Sec. 106.45(b)(1)(x) to ensure that
information protected by a legally recognized privilege is not used
during a grievance process.
Written Notice of Allegations
Section 106.45(b)(2) Written Notice of Allegations
Retaliation
Comments: Many commenters opposed Sec. 106.45(b)(2), arguing that
respondents may retaliate against complainants if respondents are given
notice of a formal complaint that contains the complainant's identity.
Some commenters cited a study which found that the fear of retaliation
by the accused or by peers is a barrier for people to report sexual
assault.\1111\ These commenters also expressed concern that Sec.
106.45(b)(2) does not require the recipient to assure the complainant
that, if retaliation occurs, the recipient would take steps to correct
the retaliatory actions. Commenters argued that such a requirement
would affirm to complainants that they will be safeguarded by
recipients in their complaints, and would help encourage complainants
to come forward with reports of sexual harassment or assault. Several
commenters argued that, because the Department provides for a warning
to complainants against false allegations, the provision should also
require recipients to warn respondents against retaliation. One
commenter suggested that the provision should identify the types of
retaliation prohibited, such as threats of civil litigation against the
complainant for defamation, or spreading rumors intended to intimidate
the complainant from filing a complaint. Another commenter asserted
that the provision should notify the parties of the retaliation
prohibition that is included in the Title IX regulation, at 34 CFR
106.71 that currently states that the Title VI regulation at 34 CFR
100.7(e) is incorporated by reference into the Title IX regulations.
One commenter asked the Department to create an independent Title IX
prohibition against retaliation to protect the complainant. Another
commenter stated that the Clery Act requires that recipients' sexual
misconduct policies include prohibitions of retaliation. A commenter
cited Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) for
the proposition that civil rights cannot be adequately protected if
people can be punished for asserting such rights.
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\1111\ Commenters cited: Shelley Hymel & Susan M. Swearer: Four
Decades of Research on School Bullying: An Introduction, 70 Am.
Psychol. 293, 295 (May-June 2015) (youth ``are reluctant to report
bullying, given legitimate fears of negative repercussions''); Ganga
Vijayasiri, Reporting Sexual Harassment: The Importance of
Organizational Culture and Trust, 25 Gender Issues 43, 53-54, 56
(2008) (``fear of adverse career consequences, or being blamed for
the incident are a major deterrent to reporting'' and this includes
peer mistreatment or disapproval).
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Commenters argued that some allegations of sexual assault involve
circumstances so serious that providing respondents notice of a
complaint would place the complainant at significant risk of further--
and potentially escalating levels of--violence. Other commenters argued
that respondents may destroy evidence or create false alibis if
recipients give respondents detailed notice of the allegations in a
formal complaint.
Other commenters expressed strong support for Sec. 106.45(b)(2),
arguing that society cannot purport to deliver justice for victims when
extra-governmental institutions are permitted to ignore due process and
the rule of law. Some commenters opined that only in the most
totalitarian systems are people investigated and adjudicated without
knowledge of the specific details of the charges before they are
expected to present a defense. A number of commenters shared personal
stories about respondents being interviewed multiple times by school
officials before they were told what allegations had been made against
them. Other commenters shared personal stories about recipients
interviewing respondents without informing the respondent what
precisely the
[[Page 30278]]
complainant had alleged or when or where the alleged misconduct had
occurred, and then when the respondent expressed uncertainty in
recalling certain details in the interview, the recipient later cited
the respondent's uncertain memory as evidence of the respondent's
guilt. Commenters stated that, in these instances, respondents lost
credibility when they were unable to clearly quote facts and events
involving unclear allegations on a moment's notice at a surprise
interview.
Discussion: The Department is persuaded by commenters' unease over
a perceived lack of protection against retaliation and therefore the
final regulations add Sec. 106.71, which prohibits any person from
intimidating, threatening, coercing, or discriminating against any
individual for the purpose of interfering with any right or privilege
secured by Title IX including, among other things, making a report or
formal complaint of sexual harassment. Recipients may communicate this
protection against retaliation to the parties in any manner the
recipient chooses. The Department disagrees that the warning about
consequences for making false statements (if such a prohibition exists
in the recipient's code of conduct) is directed only to complainants;
such a warning is for the benefit of both parties so that if the
recipient has chosen to make a prohibition against false statements
part of the recipient's code of conduct, both parties are on notice
that the Sec. 106.45 grievance process potentially implicates that
provision of the recipient's code of conduct. Similarly, Sec. 106.71
protects all parties (and witnesses, and other individuals) from
retaliation for exercising rights under Title IX, and is not directed
solely toward complainants.
The Department understands that some complainants may fear to
report sexual harassment or file a formal complaint alleging sexual
harassment, because of the possibility of retaliation, and intends that
adding Sec. 106.71 prohibiting retaliation will empower complainants
to report and file a formal complaint, if and when the complainant
desires to do so. Recipients are obligated to offer supportive measures
to a complainant (with or without the filing of a formal complaint) and
to engage the complainant in an interactive discussion regarding the
complainant's wishes with respect to supportive measures.\1112\
Recipients must keep confidential the provision of supportive measures
to the extent possible to allow implementation of the supportive
measures.\1113\ Thus, a complainant may discuss with the Title IX
Coordinator the type of supportive measures that may be appropriate due
to a complainant's concerns about retaliation by the respondent (or
others), or fears of continuing or escalating violence by the
respondent. A recipient's decision about which supportive measures are
offered and implemented for a complainant is judged under the
deliberate indifference standard, which by definition takes into
account the unique, particular circumstances faced by a complainant.
For reasons described below in this section of the preamble, the
Department has determined that a grievance process cannot proceed,
consistent with due process and fundamental fairness, without the
respondent being apprised of the identity of the complainant (as well
as other sufficient details of the alleged sexual harassment incident).
Thus, a complainant's identity cannot be withheld from the respondent
once a formal complaint initiates a grievance process, yet this does
not obviate a recipient's ability and responsibility to implement
supportive measures designed to protect a complainant's safety, deter
sexual harassment, and restore or preserve a complainant's equal
educational access.\1114\
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\1112\ Section 106.44(a).
\1113\ Section 106.30 (defining ``supportive measures'').
\1114\ Id. (supportive measures must not be punitive or
disciplinary). However, a recipient may warn a respondent that
retaliation is prohibited and inform the respondent of the
consequences of retaliating against the complainant, as part of a
supportive measure provided for a complainant, because such a
warning is not a punitive or disciplinary action against the
respondent.
---------------------------------------------------------------------------
The Department believes that providing written notice of the
allegations to both parties equally benefits complainants; after a
recipient receives a formal complaint, a complainant benefits from
seeing and understanding how the recipient has framed the allegations
so that the complainant can prepare to participate in the grievance
process in ways that best advance the complainant's interests in the
case. The Department disagrees that providing written notice of
allegations increases the risk that a respondent will destroy evidence
or concoct alibis, and even if such a risk existed the Department
believes that benefit of providing detailed notice of the allegations
outweighs such a risk because a party cannot be fairly expected to
respond to allegations without the allegations being described prior to
the expected response. Further, if a respondent does respond to a
notice of allegations by destroying evidence or inventing an alibi,
nothing in the final regulations prevents the recipient from taking
such inappropriate conduct into account when reaching a determination
regarding responsibility, numerous provisions in Sec. 106.45 provide
sufficient ways for the recipient (and complainant) to identify ways in
which a respondent has fabricated (or invented, or concocted) untrue
information, and such actions may also violate non-Title IX provisions
of a recipient's code of conduct.
Changes: The final regulations add Sec. 106.71 prohibiting
retaliation by any person, against any person exercising rights under
Title IX, and specify that complaints of retaliation may be filed with
the recipient for handling under the ``prompt and equitable'' grievance
procedures that recipients must adopt and publish for non-sexual
harassment sex discrimination complaints by students and employees
under Sec. 106.8(c).
Warning Against False Statements
Comments: Several commenters asserted that the requirement in Sec.
106.45(b)(2) that the written notice of allegations sent to both
parties must contain information about any prohibition against
knowingly submitting false information will chill reports of sexual
assault because the provision implies that the Department does not
believe allegations of sexual assault. One commenter shared the
Department's interest in preserving the truth-seeking nature of the
grievance process, but expressed concern that the threat implicit in
the proposed admonition will outweigh its value. The commenter asserted
that parties' and witnesses' statements rarely neatly align and
inconsistencies can stem from passage of time, effects of drugs or
alcohol, general unreliability of human perception and memory, and
other factors. The commenter asserted that school officials are rarely
so certain a party is lying that they should pursue discipline, yet the
admonition in Sec. 106.45(b)(2) suggests otherwise. The commenter
warned that the resulting fear is likely to discourage participation in
the process and inhibit the candor the Department stated it is seeking,
and the commenter believed that parties may interpret the statement as
their school's endorsement of harmful stereotypes about the prevalence
of false sexual misconduct reports.
Many commenters asserted that most women who choose not to come
forward do so because of the fear that people will not believe them.
Commenters cited research showing that victims rarely make false
allegations, and that only
[[Page 30279]]
somewhere between two to ten percent of sexual assault allegations are
false.\1115\ Commenters asserted that men are more likely to be
sexually assaulted themselves than to be falsely accused of committing
sexual assault.\1116\ Commenters argued that because false allegations
are so rare, there is no benefit to including a warning against making
false statements and the only purpose of such a warning is to deter
complainants from reporting or filing formal complaints.
---------------------------------------------------------------------------
\1115\ Commenters cited: David Lisak et al., False Allegations
of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16
Violence Against Women 12 (2010).
\1116\ Commenters cited: Tyler Kingkade, Males are More Likely
to Suffer Sexual Assault Than to be Falsely Accused of it, The
Huffington Post (Dec. 8, 2014).
---------------------------------------------------------------------------
One commenter suggested that Sec. 106.45(b)(2) should state that,
if the recipient finds the respondent not responsible at the conclusion
of the proceedings, a determination of not responsible will not, based
on the finding alone, result in the complainant being deemed to have
made false allegations. The commenter further requested that the
written notice include a statement that the recipient presumes that the
complainant is bringing a truthful complaint.
One commenter wanted clarification as to how false accusations
would be determined. One commenter wished to know whether false
accusations are a Title IX offense, and if so, who is authorized to
bring a complaint alleging a false accusation. The commenter also
wondered if a complainant can be held accountable for making a false
report of sexual harassment if the recipient's code of conduct does not
have a provision about submitting false statements during a
disciplinary proceeding.
Several commenters who favored Sec. 106.45(b)(2) suggested that
the provision should subject students who knowingly made false
allegations to disciplinary proceedings. Other commenters asked the
Department to explain what minimum consequences will apply to students
who make false allegations of sexual assault.
Discussion: The Department first notes that Sec.
106.45(b)(2)(i)(B) will only apply to those situations in which the
recipient's code of conduct prohibits students from knowingly making
false statements or submitting false information during a disciplinary
proceeding. If the recipient's code of conduct is silent on the issue
of false statements in the grievance process, then the final
regulations do not require recipients to include reference to false
statements in the Sec. 106.45(b)(2) written notice. If, on the other
hand, a recipient's own code of conduct does reference making false
statements during a school disciplinary proceeding then the Department
believes that both parties deserve to know that their school, college,
or university has such a provision that could subject either party to
potential school discipline as a result of participation in the Title
IX grievance process. Further, this ``warning'' about making false
statements applies equally to respondents, as to complainants.
Respondents should understand how a recipient intends to handle false
statements (e.g., in the form of a respondent's denials of allegations)
made during the grievance process.
Because the warning about making false statements occurs at a time
when the complainants have already filed a formal complaint, the
Department does not foresee that a complainant's decision to report
sexual harassment (which need not also involve filing a formal
complaint) will be affected by the recipient's notice about whether the
recipient's code of conduct prohibits making false statements during a
grievance process. The warning about false statements is not a
requirement that the complainants' statements ``neatly align'' with the
statements of other parties' or witnesses' statements, as one commenter
suggested. Nor does the Department agree that the warning enforces
harmful stereotypes about the prevalence of false sexual misconduct
reports. The warning informs both parties about code of conduct
provisions that govern either party's conduct at the grievance process,
and only applies if such provisions exist in the recipients' own code
of conduct. In response to commenters' concerns and to clarify for
recipients, complainants, and respondents that merely making an
allegation that a respondent or witness disagrees with (or is otherwise
unintentionally inaccurate) constitutes a punishable ``false
statement,'' the final regulations include Sec. 106.71 prohibiting
retaliation for exercising Title IX rights generally, and specifically
stating that while it is not retaliatory when a recipient charges a
party with a code of conduct violation for making a bad faith,
materially false statement in a Title IX proceeding, such a conclusion
cannot be based solely on the determination regarding responsibility.
This emphasizes that the mere fact that the outcome was not favorable
(which could turn on a decision-maker deciding that the party or a
witness was not credible, or did not provide accurate information, or
that there was insufficient evidence to meet the recipient's burden of
proof) is not sufficient to conclude that the party who ``lost'' the
case made a bad faith, materially false statement warranting
punishment.
The Department is sympathetic to the difficulties complainants face
in bringing a formal complaint. But recognition of the difficulties
faced by complainants navigating the grievance process should not
overshadow the fact that the respondent also faces significant
consequences in the grievance process, nor lessen the need for both
parties to be advised by the recipient of the allegations under
investigation. The Department appreciates commenters' assertions
regarding the relative infrequency of false allegations; however, Sec.
106.45(b)(2) is intended to emphasize the importance of both parties
being truthful during the grievance process by giving both parties
information about how a particular recipient addresses false statements
in the recipient's own code of conduct. Because the statement about
false statements referred to in Sec. 106.45(b)(2) is not a statement
about the truthfulness of respondents, the Department declines to
require any statement in this provision regarding the truthfulness of
complainants. Similarly, the statement in the written notice provision
regarding the presumption that a respondent is not responsible is not a
statement about the credibility or truthfulness of respondents,\1117\
and the Department declines to require any statement in the written
notice regarding truthfulness of complainants. Regardless of the
frequency or infrequency of false or unfounded allegations, every party
involved in a formal complaint of sexual harassment deserves a fair
process designed to resolve the truth of the particular allegations at
issue, without reference to whether similar allegations are ``usually''
(based on statistics or generalizations) true or untrue.
---------------------------------------------------------------------------
\1117\ As discussed previously in the ``Section 106.45(b)(1)(iv)
Presumption of Non-Responsibility'' subsection of the ``General
Requirements for Sec. 106.45 Grievance Process'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section
of this preamble, the presumption of non-responsibility is not a
presumption of credibility or truthfulness for respondents, and
Sec. 106.45(b)(1)(ii) expressly prohibits the recipient from
drawing any inferences about credibility based on status as a
complainant or respondent.
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Any determination that a complainant (or respondent) has violated
the recipient's code of conduct with respect to making false statements
during a grievance process is a fact-specific determination for the
recipient to decide; however, as noted above, the
[[Page 30280]]
final regulations add Sec. 106.71 advising recipients that it could
constitute retaliation to punish a party for false statements if that
conclusion is reached solely based on the determination regarding
responsibility, thus cautioning recipients to carefully assess whether
a particular complainant (or respondent) should face code of conduct
charges involving false statements.
The Department declines to follow the recommendations of commenters
who argued that Sec. 106.45(b)(2) should include a provision that
subjects students who knowingly make false statements to disciplinary
proceedings, nor does the Department wish to prescribe what the minimum
consequences of making a false statement would be. If the recipient
believes that a party violated the recipient's code of conduct during
the grievance process, the recipient may investigate the matter under
its own code of conduct, but the Department does not require such
action.
Changes: The final regulations add Sec. 106.71 prohibiting
retaliation for exercising Title IX rights generally, and specifically
stating that while it is not retaliatory when a recipient punishes a
party for making a bad faith, materially false statement in a Title IX
proceeding, such a conclusion cannot be based solely on the
determination regarding responsibility.
Investigative Process
Comments: Several commenters with experience conducting criminal
investigations asserted that, to get reliable and truthful information,
it is important not to warn subjects of a criminal investigation that
they are under investigation. The commenters argued that giving parties
notice of the details of an alleged incident before the initial
interview may give them the ability to affect the outcome of their case
by manipulating their own testimony, tampering with evidence, or
intimidating witnesses. Several commenters asked the Department to
change the notice requirement to align with standard investigation
practices that call for unplanned interviews. These commenters
suggested that recipients not be required to give parties notice of
allegations until the university has decided to proceed with formal
charges. Another commenter stated that, although there is general
agreement that providing sufficient notice prior to interviews
effectuates the rights to an advisor guaranteed by VAWA Section 304,
the industry standard is to provide this notice prior to charging, not
prior to interviewing.
One commenter who designs policies to address sexual assault on a
university campus pointed out that universities lack the power to
subpoena witnesses in its investigations. Since the notice provision in
Sec. 106.45(b)(2) gives witnesses ample time to craft their testimony
before an initial interview, and as the university already lacks the
ability to compel witnesses to hand over evidence, the commenter argued
that the notice provision will hamper a recipient's ability to gather
accurate testimony. To repair this problem, the commenter suggested
that the Department instead require recipients to give notice of
allegations to interested parties after the university has completed
all initial interviews and has decided to proceed with a formal
grievance procedure.
One commenter wanted to know how the provision would affect
university police investigative techniques. Specifically, the commenter
wondered whether university police would be prohibited from
interviewing an accused party in a criminal investigation unless the
university provided written notice of the interview. Another commenter
requested further guidance from the Department on how schools should
handle overlapping enforcement entities, especially regarding the
notice requirement and whether an interview with law enforcement would
violate Title IX if the police officer conducted the interview before
the Title IX Coordinator was able to provide notice of allegations to
the respondent.
Several commenters expressed concern about the notice provision
interfering with the ability of campus officials to perform
investigations concurrently with police. Commenters warned that an
institution may inadvertently interfere with an ongoing law enforcement
investigation if the institution contacts a respondent or witnesses
before law enforcement has had a chance to do so. One commenter asked
the Department to clarify that institutions may allow for a temporary
delay of notice to the respondent at the request of law enforcement
after receipt of a complaint, but before initiation of grievance
proceedings.
Discussion: While the Department appreciates commenters' concerns
about best practices in conducting criminal investigations, the
Department reiterates that a Sec. 106.45 grievance process occurs
independently of any criminal investigation that may occur
concurrently, and the recipient's obligation to inform the parties of
the allegations under investigation is a necessary procedural benefit
for both parties. Precisely because schools, colleges, and universities
are not law enforcement entities but rather educational institutions,
the Department does not intend to require recipients to adopt best
practices from law enforcement. For purposes of a fair, impartial
investigation into allegations in a formal complaint, the Department
believes that providing written notice of the allegations to both
parties at the beginning of the investigation best serves the important
goal of fostering reliable outcomes in Title IX grievance processes.
The Department understands commenters' concerns that investigators
(whether law enforcement or not) may believe that catching a respondent
by surprise gets at the truth better than giving a respondent notice of
the allegations with sufficient time for the respondent to prepare a
response, including by making it less likely that a respondent has time
or opportunity to destroy evidence or manipulate testimony. However,
the Department agrees with commenters supporting Sec. 106.45(b)(2) who
asserted that notice of the allegations is an essential feature of a
fair process; without knowing the scope and purpose of an interview a
respondent will not have a fair opportunity to seek assistance from an
advisor of choice and think through the respondent's view of the
alleged facts. The Department declines to require written notice only
if a recipient decides to proceed with a formal investigation, because
the final regulations require a recipient to investigate the
allegations in a formal complaint.\1118\ The Sec. 106.45 grievance
process does not recognize, or permit a recipient to recognize, a
difference between commencing an investigation upon receipt of a formal
complaint, and a separate step of ``charging'' the respondent that, by
commenters' descriptions, sometimes involves a recipient interviewing
parties or witnesses before deciding whether to ``charge'' a respondent
and thereby conduct a full investigation. If an investigation reveals
facts requiring or permitting dismissal of the formal complaint
pursuant to Sec. 106.45(b)(3), the parties have been informed of the
formal complaint, the allegations therein, and then the reasons for the
dismissal, such that both parties can exercise their right to appeal
the dismissal decision.\1119\ While a recipient may take steps that the
[[Page 30281]]
recipient considers part of an ``investigation'' without having
received a formal complaint, the recipient may not impose discipline on
a respondent without first complying with a grievance process that
complies with Sec. 106.45,\1120\ which includes providing a party with
written notice of the date, time, location, participants, and purpose
of all investigative interviews with a party with sufficient time for
the party to prepare to participate.\1121\ Thus, even if a recipient is
not in ``receipt of a formal complaint'' which triggers the recipient's
obligation to send the written notice of allegations in Sec.
106.45(b)(2), the recipient cannot impose disciplinary sanctions on a
respondent, or take other actions against a respondent that do not fit
the definition of ``supportive measures'' in Sec. 106.30, without
following the Sec. 106.45 grievance process.
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\1118\ Section 106.44(a); Sec. 106.45(b)(3)(i).
\1119\ The final regulations revise Sec. 106.45(b)(8) to
expressly grant both parties equal right to appeal a recipient's
mandatory or discretionary dismissal decisions.
\1120\ Section 106.44(a); Sec. 106.45(b)(1)(i).
\1121\ Section 106.45(b)(5)(v).
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If a respondent reacts to a notice of allegations by manipulating
the respondent's own testimony, or by tampering with evidence, the
Sec. 106.45 grievance process provides adequate avenues through which
the investigation and adjudication can account for such conduct, so
that a respondent's attempt to fabricate or falsify information would
be part of the objective evaluation of evidence a decision-maker
performs in reaching a determination. For example, if a respondent
manufactures a counter-narrative to the allegations, the complainant
and the recipient have the opportunity to question the respondent about
the respondent's statements and reveal inaccuracies, inconsistencies,
or false statements.\1122\ Similarly, if a witness crafts or
manipulates the witness's own testimony, inaccuracy and untruthfulness
can be revealed through questioning of the witness by parties and the
recipient. If a respondent reacts to a written notice of allegations by
intimidating witnesses, such conduct is prohibited as retaliation under
Sec. 106.71.
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\1122\ Section 106.45(b)(6)(ii) (providing that whether or not a
hearing is held in elementary and secondary schools, the parties
have opportunity to submit written questions to the other party,
including questions designed to test credibility); Sec.
106.45(b)(6)(i) (providing that during a live hearing held by a
postsecondary institution, each party has an opportunity to cross-
examine the other party, but only with cross-examination conducted
by party advisors).
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The Department notes that the Sec. 106.45 grievance process
applies only to investigation and adjudication of formal complaints
under Title IX, and has no applicability to criminal investigations.
Regardless of whether a criminal investigation is conducted by ``campus
police'' or other law enforcement officers, the recipient's obligations
to comply with Sec. 106.45 apply when a party is interviewed for the
purpose of a Title IX grievance process, as opposed to furtherance of a
criminal investigation.
The Department recognizes that a recipient's obligation to
investigate a formal complaint of sexual harassment may overlap with
concurrent law enforcement investigation into the same allegations.
Where appropriate, the final regulations acknowledge that potential
overlap; for example, by acknowledging concurrent law enforcement
activity as ``good cause'' to temporarily delay the Sec. 106.45
grievance process under Sec. 106.45(b)(1)(v). However, the Department
emphasizes that a recipient's obligation to investigate and adjudicate
promptly and fairly under Sec. 106.45 exists separate and apart from
any concurrent law enforcement proceeding, and the recipient therefore
must comply with all provisions in Sec. 106.45, including the written
notice provision, regardless of whether law enforcement is conducting a
concurrent investigation. The Department notes that Sec.
106.45(b)(1)(v) addressing the recipient's designated, reasonably
prompt time frames contemplates good cause temporary delays and limited
extensions of time frames only after the parties have received the
initial written notice of allegations under Sec. 106.45(b)(2), such
that concurrent law enforcement activity is not good cause to delay
sending the written notice itself.\1123\
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\1123\ Section 106.45(b)(1)(v) (specifying that where a
recipient delays or extends a time frame for good cause, the
recipient must send written notice to the complainant and the
respondent of the delay or extension and the reasons for the
action).
---------------------------------------------------------------------------
Changes: None.
Administrative Burden on Schools
Comments: Many commenters urged the Department to give recipients
more flexibility in determining the appropriate timing for sending the
written notice of allegations under Sec. 106.45(b)(2). Commenters
argued that many complaints require an initial investigation to confirm
the identity of the involved parties, to clarify any missing
information, and to determine whether Title IX or the campus policy
applies, and requiring written notice to the parties right away does
not make sense when many complaints turn out to lack merit or not
allege Title IX or policy violations. Several commenters asked the
Department to provide that recipients must give respondents ``prompt
written notice'' instead of ``upon receipt of a formal complaint,'' to
give recipients a reasonable amount of time before providing the
written notice of allegations.
One commenter asked the Department to make the written notice
provision more flexible for smaller universities, because college
officials often have a close personal connection with students. One
commenter argued that the written notice provision would amount to a
disturbing constraint on a campus administrator's authority to respond
quickly to allegations. The commenter quoted the Department's
commentary in the NPRM that ``when determining how to respond to sexual
harassment, recipients have flexibility to employ age-appropriate
methods, exercise common sense and good judgment, and take into account
the needs of the parties involved,'' but the commenter opined that
Sec. 106.45(b)(2) runs contrary to this stated intent.
Other commenters noted that many institutions receive more
disclosures of inappropriate conduct than formal complaints, and
asserted that in many of those cases, the disclosing student is seeking
supportive measures and feels satisfied when those personalized
supports are put in place (extensions of time, opportunities to change
housing, escorts, etc.). Commenters argued that the written notice
provision, by alerting the respondent of a report alleging sexual
assault before an investigation has taken place, escalates the matter
too early.
Another commenter asserted that, at the onset of an investigation,
recipients should have the authority to identify allegations under
their policy broadly, and then provide an additional, more specific,
notice when the investigation process concludes because the proposed
regulations appear to require as many written notices to parties as
there are changes to the allegations over the course of an
investigation, placing an undue burden on recipients with no clear
added value to the transparency of the investigation.
Another commenter argued that Sec. 106.45(b)(2) is burdensome to
schools because Title IX already requires schools to file annual
proactive notice to parties of the school's grievance procedures.
Numerous commenters asserted that the administrative burdens placed on
schools by the written notice of allegations provision will incentivize
schools to try to avoid legal jeopardy rather than try to achieve
school safety.
Discussion: The Department disagrees that Sec. 106.45(b)(2) leaves
recipients with insufficient flexibility to respond quickly to
allegations or contradicts the intent expressed in the NPRM that
[[Page 30282]]
recipients should employ age-appropriate methods, exercise common sense
and good judgment, and take into account the needs of the parties
involved. The Department reiterates that the written notice of
allegations provision applies only after a recipient receives a formal
complaint; thus, a recipient need not wait until written notice of
allegations has been sent in order to, for example, provide supportive
measures to the complainant (or the respondent).\1124\ For similar
reasons, nothing about Sec. 106.45(b)(2) restricts a recipient's
flexibility to implement supportive measures designed to restore or
preserve the complainant's equal access to education by taking into
account the unique needs of the parties and using common sense and good
judgment, and the definition of supportive measures emphasizes that
supportive measures are ``individualized services'' reasonably
available ``before or after the filing of a formal complaint or where
no formal complaint has been filed.'' \1125\ With respect to the
written notice itself, nothing in Sec. 106.45(b)(2) prescribes how the
information in the written notice is phrased, such that recipients are
free to employ age-appropriate methods, common sense, and good judgment
in choosing how to convey the information required to be included in
the written notice.
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\1124\ In fact, revised Sec. 106.44(a) obligates recipients to
promptly respond to any notice of Title IX sexual harassment
(regardless of whether a complainant or Title IX Coordinator also
files a formal complaint) by, among other things, promptly offering
the complainant supportive measures. We reiterate that no written or
signed document, much less a ``formal complaint'' as defined in
Sec. 106.30, is required in order to trigger the recipient's
response obligations. To emphasize this, we have revised Sec.
106.30 defining ``actual knowledge'' to expressly state that
``notice'' conveying actual knowledge to the recipient (triggering
the recipient's response obligations) includes a report to the Title
IX Coordinator as described in Sec. 106.8(a), which in turn states
that any person may report sexual harassment to the Title IX
Coordinator in person, by mail, phone, or email. Section 106.8(b)(2)
also requires the recipient to prominently display that contact
information for the Title IX Coordinator on the recipient's website.
\1125\ Section 106.30 (defining ``supportive measures'').
---------------------------------------------------------------------------
The Department agrees with commenters who noted that many
complainants report sexual harassment seeking supportive measures
rather than a formal grievance process, and the Department reiterates
that Sec. 106.45 only applies after a recipient has received a formal
complaint; a recipient need not send written notice of allegations
based on reports, disclosures, or other forms of ``notice'' that
charges a recipient with actual knowledge that do not consist of
receipt of a formal complaint (and a formal complaint may only be filed
by a complainant, or signed by the Title IX Coordinator).\1126\
---------------------------------------------------------------------------
\1126\ Section 106.30 (defining ``formal complaint'').
---------------------------------------------------------------------------
The Department disagrees that a recipient should have discretion to
decide to dismiss formal complaints that are unsubstantiated or
otherwise fail to meet some threshold of merit. The Department believes
that where a complainant has chosen to file a formal complaint, or the
Title IX Coordinator has decided to sign a formal complaint, the
recipient must investigate those allegations; determinations about the
merits of the allegations must be reached only by following the fair,
impartial grievance process designed to reach accurate outcomes. As
noted above, the final regulations revise Sec. 106.45(b)(3) to provide
for discretionary dismissals on specified grounds, but those grounds do
not include a recipient's premature determination that allegations lack
merit.
Whether or not many recipients currently provide written notice
prior to conducting an interview as part of a Title IX grievance
process, the Department believes written notice of allegations with
adequate time to prepare for an interview constitutes a core procedural
protection important to a fair process. A fundamental element of
constitutional due process of law is effective notice that enables the
person charged to participate in the proceeding.\1127\ The final
regulations promote clarity as to recipient's legal obligations, and
promote respect for each complainant's autonomy, by distinguishing
between a complainant's report of sexual harassment, on the one hand,
and the filing of a formal complaint that has initiated a grievance
process against a respondent, on the other hand. While the complainant
and recipient may discuss the complainant's report of sexual harassment
without notifying the respondent (including discussion to decide on
appropriate supportive measures), when the complainant files a formal
complaint, the respondent must be notified that the respondent is under
investigation for the serious conduct defined as ``sexual harassment''
under Sec. 106.30.
---------------------------------------------------------------------------
\1127\ Goss v. Lopez, 419 U.S. 565, 579 (1975) (``At the very
minimum, therefore, students facing suspension and the consequent
interference with a protected property interest must be given some
kind of notice and afforded some kind of hearing. `Parties whose
rights are to be affected are entitled to be heard; and in order
that they may enjoy that right they must first be notified.' '')
(internal citation omitted) (emphasis added); id. at 583 (``On the
other hand, requiring effective notice and informal hearing
permitting the student to give his version of the events will
provide a meaningful hedge against erroneous action.'') (emphasis
added).
---------------------------------------------------------------------------
The Department understands commenters' assertions that waiting to
provide notice of the allegations until after conducting an initial
interview prevents a respondent from manipulating the respondent's own
statements, and that some recipients' current practices permit the
recipient an opportunity to decide after the initial respondent
interview whether or not the recipient intends to proceed with the
investigation. However, the Department believes that complainants
deserve the clarity of knowing that the filing of a formal complaint
obligates the recipient to investigate the allegations, and once the
respondent is under investigation the respondent must be made aware of
the allegations with sufficient time to prepare for an initial
interview because ``effective notice'' in time to give the respondent
opportunity to tell the respondent's ``version of the events'' helps
prevent erroneous outcomes.\1128\
---------------------------------------------------------------------------
\1128\ Goss, 419 U.S. at 579.
---------------------------------------------------------------------------
In response to commenters' concerns that the proposed rules did not
provide a recipient sufficient leeway to halt investigations that
seemed futile, the final regulations revise Sec. 106.45(b)(3)(ii) to
provide that a recipient may (in the recipient's discretion) dismiss a
formal complaint, or allegations therein, in certain circumstances
including where a complainant requests the dismissal (in writing to the
Title IX Coordinator), where the respondent is no longer enrolled or
employed by the recipient, or where specific circumstances prevent the
recipient from meeting the recipient's burden to collect sufficient
evidence (for example, where a postsecondary institution complainant
has ceased participating in the investigation and the only inculpatory
evidence available is the complainant's statement in the formal
complaint or as recorded in an interview by the investigator).
Similarly, where it turns out that the allegations in a formal
complaint do not meet the definition of sexual harassment under Sec.
106.30, or did not occur against a person in the United States, or did
not occur in the recipient's education program or activity, Sec.
106.45(b)(3)(i) requires the recipient to dismiss the allegations
(though the final regulations clarify that the recipient has discretion
to address the allegations through a non-Title IX code of conduct) and
notify the parties of the dismissal (which implies that the ``parties''
have already been informed that they are parties via receiving the
Sec. 106.45(b)(2) written notice of allegations). However, the fact
that
[[Page 30283]]
allegations of sexual harassment were raised in a formal complaint
warrant notifying the respondent that those allegations had triggered
an investigation, even if the allegations are subsequently dismissed,
whether the dismissal is mandatory under Sec. 106.45(b)(3)(i) or
discretionary under Sec. 106.45(b)(3)(ii). This gives both parties
equal opportunity to appeal the recipient's dismissal decision, or to
request that dismissed allegations be addressed under non-Title IX
codes of conduct.\1129\
---------------------------------------------------------------------------
\1129\ The final regulations revise Sec. 106.45(b)(8) so that
parties have the right to appeal any dismissal decision. While some
respondents may not desire to appeal a dismissal, other respondents
may desire to challenge the recipient's conclusion that, for
instance, the conduct alleged did not constitute sexual harassment
as defined in Sec. 106.30, because if the conduct constitutes Title
IX sexual harassment the recipient is not permitted to discipline
the respondent without first following the Sec. 106.45 grievance
process, which may provide stronger procedural rights and
protections than other disciplinary proceedings a recipient might
use if the recipient charges the respondent with a non-Title IX code
of conduct violation over the allegations.
---------------------------------------------------------------------------
The Department believes that requiring subsequent written notice of
allegations when the allegations under investigation change
appropriately notifies the parties of a change in the scope of the
investigation, and does not believe that this benefit would be achieved
by only requiring a follow-up written notice after the investigation
has concluded. The Department is requiring recipients to inform the
parties of the alleged conduct that potentially constitutes sexual
harassment under Sec. 106.30, including certain details about the
allegations (to the extent such details are known at the time).
Although Sec. 106.45(b)(2) requires subsequent written notice to the
parties as the recipient discovers additional potential violations, the
Department does not agree with the commenter that this requirement adds
``no clear value'' to the transparency of the investigation or that the
benefits of such subsequent notice to the parties is outweighed by the
administrative burden to the recipient of generating and sending such
notices.\1130\ If the respondent is facing an additional allegation,
the respondent has a right to know what allegations have become part of
the investigation for the same reasons the initial written notice of
allegations is part of a fair process, and the complainant deserves to
know whether additional allegations have (or have not) become part of
the scope of the investigation. This information allows both parties to
meaningfully participate during the investigation, for example by
gathering and presenting inculpatory or exculpatory evidence (including
fact and expert witnesses) relevant to each allegation under
investigation.
---------------------------------------------------------------------------
\1130\ Deciding whether additional procedural safeguards are
required under constitutional due process of law involves balancing
the ``private'' interests at stake (here, the interests of the
parties in a recipient reaching an accurate outcome), the
administrative burden and cost to the government (here, the
recipient) to provide the additional procedure, and the likelihood
that the additional procedure may reduce the risk of erroneous
outcome. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The
Department believes that consideration of these factors weighs in
favor of requiring subsequent written notices to the parties when
the allegations change during an investigation: The outcome of a
case poses serious consequences for both parties; recipients are not
unaccustomed to sending written notices to students (and parents of
minor students) for a wide range of activities; and ensuring that
the parties' participation throughout the grievance process focuses
on the actual allegations being investigated by the recipient
significantly reduces the risk of erroneous outcomes.
---------------------------------------------------------------------------
The Department does not believe that requiring recipients to send
written notice of the allegations under investigation will incentivize
recipients to care less about school safety than about legal liability.
While the written notice provision constitutes a legal obligation, the
purpose of the provision is to ensure that parties have critical
information about the recipient's investigation; in that way, the
obligation to send written notice of the allegations forms part of the
recipient's response demonstrating concern about the safety of the
recipient's educational environment, not simply a legalistic
obligation. Measures that a recipient should take specifically to
protect the safety of a complainant, respondent, or members of the
recipient's community are unaffected by the recipient's obligation to
send written notice of the allegations to the parties. For example, a
recipient's non-deliberately indifferent response under Sec. 106.44(a)
includes offering supportive measures to complainants, and supportive
measures as defined in Sec. 106.30 may be designed to protect a
complainant's safety or deter sexual harassment. Under Sec. 106.44(c),
a respondent who poses an immediate threat to the physical health or
safety of any student or other individual may be removed from the
recipient's education program or activity on an emergency basis, with
or without a grievance process pending.
Although the Department understands recipients' desire for as much
flexibility as possible to design disciplinary proceedings that best
meet the needs of a recipient's unique educational community, for the
reasons discussed previously the Department believes that providing
written notice of the allegations under investigation is not a
procedural right that should be left to a recipient's discretion. The
final regulations leave recipients flexibility to select the method of
delivery of the written notices required under Sec. 106.45(b)(2)
(including the initial notice and any subsequent notices), and while
the initial notice must be sent ``upon receipt'' of a formal complaint,
with ``sufficient time'' for a party to prepare for an initial
interview, such provisions do not dictate a specific time frame for
sending the notice, leaving recipients flexibility to, for instance,
inquire of the complainant details about the allegations that should be
included in the written notice that may have been omitted in the formal
complaint, and draft the written notice, while bearing in the mind that
the entire grievance process must conclude under the recipient's own
designated time frames.
Changes: We have revised Sec. 106.45(b)(3) to provide recipients
with the discretion to dismiss a formal complaint, or allegations
therein, where the complainant notifies the Title IX Coordinator in
writing that the complainant wishes to withdraw the formal complaint or
allegations, where the respondent is no longer enrolled or employed by
the recipient, or where specific circumstances prevent a recipient from
gathering evidence sufficient to reach a determination regarding
responsibility.
Elementary and Secondary Schools
Comments: Several commenters argued that Sec. 106.45(b)(2) would
be harmful to students and administrators at elementary and secondary
schools because accusations of sexual assault or abuse are often
described without specific details or in a way that makes it difficult
to determine whether the alleged misconduct falls under Title IX, under
the recipient's code of conduct, or neither. Commenters argued that
Sec. 106.45(b)(2) would require school administrators to provide
multiple written notices, because an initial description of the
misconduct might make it seem like the allegations fall under several
different codes of conduct. Another commenter stated that requiring
that the respondent be given ``sufficient time for a response before
any initial interview'' does not consider the possible threat to the
learning environment or the developing nature of a minor's memory.
Another commenter asserted that courts do not give elementary and
secondary school students due process rights, so the written notice of
allegations provision should not apply to elementary and secondary
school recipients.
[[Page 30284]]
A few commenters advised changing the written notice provision to
account for young complainants and respondents, especially students in
preschool and elementary and secondary schools by giving the Title IX
Coordinator discretion to communicate to parents or parties over the
phone rather than strictly in writing.
Commenters argued that, in elementary and secondary schools
addressing peer harassment incidents, the written notice of allegations
provision fails to take into account the high volume of low-level
incidents schools address and how burdensome and expensive this
provision would become for students, parents, and administrators.
Commenters argued that this provision would escalate situations from
relatively informal to extremely formal, which would be alarming for
students and parents. One commenter agreed that the accused student
must be afforded due process, including notice of the allegations and
an opportunity to respond, but disagreed that the written notice
provision should apply to elementary and secondary schools, because it
is neither necessary nor reasonable for an elementary and secondary
school administrator to send the level of detail required by Sec.
106.45(b)(2) in a written notice for all sexual harassment cases. At
least one commenter argued that public elementary and secondary schools
in the commenter's State do not have ``codes of conduct'' and instead
have policies approved by a board of education pursuant to the
commenter's State education code. The commenter stated that the
language of Sec. 106.45(b)(2) does not fit the elementary and
secondary school setting.
Discussion: The Department reiterates that the recipient need not
provide the written notice of allegations under Sec. 106.45(b)(2)
unless a formal complaint has been filed; this should reduce
commenters' concerns that elementary and secondary schools will be
inundated with the need to generate written notices whenever any
conduct termed ``sexual harassment'' is reported or that elementary and
secondary school administrators will need to send out written notices
concerning ``vague'' or ``unspecific'' reports of conduct that may or
may not constitute sexual harassment. Further, the Department clarifies
that when a formal complaint contains allegations of conduct that could
constitute not only sexual harassment defined by Sec. 106.30 but also
violations of other codes of conduct, the final regulations have
revised the language used in Sec. 106.45(b)(2) to remove confusing
references to the recipient's code of conduct and focus this provision
on the need to send notice of allegations that could constitute sexual
harassment as defined in Sec. 106.30. The Department appreciates the
opportunity to clarify here that references in the final regulations to
a recipient's ``code of conduct'' refer to any set of policies, rules,
or similar codes that purport to govern the conduct or behavior of
students or employees, whether such policies, rules, or codes have been
crafted by the individual school itself, under mandates from a State or
local law, pursuant to school board resolutions, or by other means.
Furthermore, Sec. 106.45(b)(2) requires the recipient to include in
the written notice ``sufficient details known at the time'' (emphasis
added), such that even if a young student describes a sexual harassment
incident in a manner that omits precise, specific details, a recipient
may still comply with Sec. 106.45(b)(2)(i), and then send subsequent
notices as described in Sec. 106.45(b)(2)(ii) as details about
allegations may be discovered during the investigation.
The Department notes that Sec. 106.44(c) and Sec. 106.44(d) allow
a recipient to remove a respondent from the recipient's education
program on an emergency basis, and place a non-student employee on
administrative leave during the pendency of an investigation,
alleviating commenters' concerns that giving the respondent sufficient
time to respond by sending written notice that a grievance process is
underway will allow a threat to remain in the educational environment.
The recipient is also obligated to offer the complainant supportive
measures, including during the pendency of a grievance process, and
thus the Department does not believe that requiring written notice to
the parties after a formal complaint has been filed restricts a
recipient's ability to provide for the safety of parties and deter
sexual harassment.\1131\
---------------------------------------------------------------------------
\1131\ Section 106.30 (defining ``supportive measures'' as
individualized services designed to, among other things, protect the
safety of all parties and/or deter sexual harassment).
---------------------------------------------------------------------------
The Department agrees with commenters that elementary and secondary
school recipients, as well as postsecondary recipients, must
appropriately address incidents of sexual harassment in order to avoid
subjecting students and employees to sex discrimination in violation of
Title IX. The Department notes that the Supreme Court has confirmed
that public elementary and secondary school students are entitled to
due process under the U.S. Constitution in school disciplinary
proceedings.\1132\ Although commenters are correct that no Supreme
Court decision specifically requires written notice when a formal
complaint of sexual misconduct has been filed, the Supreme Court has
held that ``effective notice'' constitutes an essential element of due
process because it allows the person accused to make sure that their
``version of the events'' is heard,\1133\ and the Department reasonably
has determined that providing written notice of allegations, containing
details of the allegations that are known at the time, after a formal
complaint has triggered a recipient's obligation to investigate and
adjudicate sexual harassment constitutes an important procedural
protection for the benefit of all participants in the grievance
process, and increases the likelihood that the recipient will reach an
accurate determination regarding responsibility, which is necessary to
hold recipients accountable for providing remedies to victims of Title
IX sexual harassment.
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\1132\ Goss, 419 U.S. at 578-79 (holding that in the educational
context ``the interpretation and application of the Due Process
Clause are intensely practical matters'' that require at a minimum
notice and ``opportunity for hearing appropriate to the nature of
the case'') (internal quotation marks and citations omitted).
\1133\ Goss, 419 U.S. at 583.
---------------------------------------------------------------------------
The Department does not believe that the requirement for parties to
receive written notice of the allegations needs to be modified when the
parties are young. The final regulations revise Sec. 106.8(b) to
include parents on the list of persons to whom recipients send notice
and information about the recipient's non-discrimination policy and
procedures; the final regulations add Sec. 106.6(g) to expressly state
that these regulations do not alter the legal right of parents and
guardians to exercise rights on behalf of parties; and nothing in the
final regulations precludes a Title IX Coordinator from communicating
with a young student's parent about the process (including conveying
the same information as contained in a written notice) via telephone or
in person so long as the written notice meets the requirements of Sec.
106.45(b)(2).
The Department reiterates that the grievance process is initiated
(and thus the written notice requirement applies) only when the
complainant has filed, or the Title IX Coordinator has signed, a formal
complaint. Thus, the written notice requirement does not ``escalate''
an incident; rather, a complainant's choice (or a Title IX
Coordinator's decision) has resulted in a formal complaint triggering a
grievance process. Only then is the recipient
[[Page 30285]]
required to send the written notice of allegations under Sec.
106.45(b)(2). Where no formal complaint has been filed by a complainant
or signed by a Title IX Coordinator, the recipient is not obligated to
``escalate'' the reported incident by, for example, informing the
respondent that the respondent has been reported to be a perpetrator of
sexual harassment; a recipient is obligated to keep confidential
provision of supportive measures to a complainant (which the recipient
must offer to complainants), except as necessary to actually implement
the supportive measures (for example, the respondent may need to know
the identity of a complainant who has reported the respondent to have
perpetrated sexual harassment if the appropriate supportive measure is
a no-contact order and the respondent needs to know with whom to avoid
communicating under the terms of the order).
Because of the seriousness of the allegations in a formal complaint
of sexual harassment, and the access to education that is at stake for
both parties in a grievance process addressing those allegations, the
Department requires the recipient to allow the parties to meaningfully
participate in the grievance process. This participation requires
written notice of allegations to both parties where there is a formal
complaint, including the details specified in this provision. The
Department disagrees that pertinent information such as the identity of
the parties involved, location and date of the incident, and the nature
of the misconduct that could constitute sexual harassment as defined in
Sec. 106.30, with ``sufficient details known at the time'' (as Sec.
106.45(b)(2) provides) amounts to an unnecessary or unreasonable amount
of detail for recipients to include in a written notice of allegations,
including in elementary and secondary schools. The provision's use of
the phrases ``known at the time'' and ``if known'' in this provision
indicates that the Department understands that not every significant
detail will be known in every situation, yet expects the written notice
to provide both parties with key information about the alleged incident
so that both parties understand the scope of the investigation and can
prepare to meaningfully participate by advancing the party's own
interests in the outcome of the case. The final regulations also revise
Sec. 106.45(b)(2) so that the written notice of allegations also
notifies the parties of each party's right to an advisor of choice,
further ensuring that parties are prepared to meaningfully participate
in a grievance process.
Changes: We have revised Sec. 106.45(b)(2)(ii) to remove
references to a recipient's ``code of conduct'' and adds reference to
sexual harassment ``as defined in Sec. 106.30'' to reduce confusion
among commenters as to whether the written notice requirement applies
to allegations that constitute sexual harassment as defined in Sec.
106.30 or to other violations of a recipient's code of conduct. For the
same reason, we have revised Sec. 106.45(b)(2)(i) to reference the
grievance process ``that complies with Sec. 106.45'' to clarify that
the written notice pertains to the grievance process a recipient must
follow to comply with Title IX. We have revised Sec. 106.8(a) to
include parents and legal guardians of elementary and secondary school
students on the list of persons to whom recipients send notice and
information about the recipient's non-discrimination policy and
procedures. We have added Sec. 106.6(g) to state that nothing in the
final regulations alters the legal right of parents or guardians to
exercise rights on behalf of a party.
Confidentiality and Anonymity for Complainants
Comments: One commenter suggested that written notice of
allegations sent to the parties naming the complainant and listing the
details of the allegations could be leaked or forwarded to unrelated
third parties, which could damage the respondent's reputation, threaten
both parties' access to education, and possibly violate State and
Federal health care privacy laws regarding the respondent's or
complainant's medical history. Some commenters requested that Sec.
106.45(b)(2) be revised to bar both respondents and complainants from
disclosing personally identifiable information except as necessary to
prepare a response.
Other commenters believed that Sec. 106.45(b)(2), by sending
notice of the formal complaint, exposes complainants to increased
scrutiny not applied to students reporting other kinds of student
misconduct.
Several commenters wanted the Department to give recipients
flexibility to allow complainants to stay anonymous in certain
circumstances, and to retain the approach under the 2001 Guidance,
which advised that an institution may ``evaluate the confidentiality
request'' of a complainant or respondent ``in the context of its
responsibility to provide a safe and non-discriminatory environment for
all schools,'' \1134\ considering factors like the severity of the
alleged conduct.
---------------------------------------------------------------------------
\1134\ Commenters cited: 2001 Guidance at 17.
---------------------------------------------------------------------------
One commenter asserted that there is precedent for including only
the initials of parties in the pre-investigation stage of the
complaint.\1135\ Other commenters argued that respondents do not need
to know the complainant's identity to meaningfully participate in the
recipient's grievance procedure.
---------------------------------------------------------------------------
\1135\ Commenter cited: Maricella Miranda, Victims' names can be
withheld in criminal complaints, court rules in Ramsey County case,
Pioneer Press (Aug. 18, 2009).
---------------------------------------------------------------------------
Several commenters argued that it is unfair to complainants to
expose the complainant's identity, especially because proposed Sec.
106.44(b)(2) required a Title IX Coordinator to file a formal complaint
over the wishes of a complainant where multiple reports had been made
against the same respondent. Commenters argued that this could
significantly chill a complainant's willingness to report sexual
misconduct because the complainant's identity could be revealed to the
respondent even when the complainant never even wanted to initiate a
grievance process. Commenters wondered whether a Title IX Coordinator
must deny requests by complainants to remain anonymous if the Title IX
Coordinator elects to file a formal complaint.
Commenters argued that, due to a fear of retaliation, many students
are unwilling to report an employee or professor if the student cannot
remain anonymous. One commenter stated that, for other types of
misconduct allegations, such as theft of property, employees are often
questioned without being told who reported them.
Some commenters suggested modifying Sec. 106.45(b)(2) to expressly
bar complainants from maintaining anonymity, or to forbid schools from
investigating allegations unless complainant agree to identify
themselves.
Commenters suggested that Sec. 106.45(b)(2) should be modified to
require schools to give the respondent a copy of the complainant's
written formal complaint when sending the written notice of
allegations, or if the formal complaint was not written then the
recipient should send the respondent a verbatim summary of the oral
complaint.
Other commenters supported Sec. 106.45(b)(2) and shared personal
stories where, as respondents, the commenters could not understand the
allegations without knowing the identity of the complainant. For
[[Page 30286]]
example, one commenter stated that the recipient attempted to inform
the respondent of sexual misconduct allegations while also withholding
the identity of the complainant and as a result, the respondent spent
much of the investigation believing that the allegations centered
around a kiss at a party with one person, only to find out after the
identity of the complainant was finally revealed that the allegations
were actually made by a different person. Other commenters supported
Sec. 106.45(b)(2) because while campus sexual misconduct hearings are
not criminal cases, they are proceedings with significant and far-
reaching consequences, including possible expulsion making it difficult
for a respondent to transfer to any other university, and respondents
deserve the basic due process right to know details about the
allegations. At least one commenter cited a survey of public
perceptions of higher education, including topics such as campus sexual
assault and due process; in the survey, 81 percent of people agreed
that students accused of sexual assault on college campuses should have
the right to know the charges against them before being called to
defend themselves, which the commenters argued should include the
identity of the complainant.\1136\
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\1136\ Commenters cited: Bucknell Institute for Public Policy,
Perceptions of Higher Education Survey--Topline Results (2017).
---------------------------------------------------------------------------
Discussion: The Department clarifies that recipients (and, as
applicable, parties) must follow relevant State and Federal health care
privacy laws throughout the grievance process. Nothing in the notice
should divulge the complainant's (or respondent's) medical information
or other sensitive information, nor does Sec. 106.45(b)(2) require
disclosure of such information. To further respond to commenters'
concerns about disclosure of medical information, the final regulations
add to Sec. 106.45(b)(5)(i) a prohibition against a recipient
accessing or using for a grievance process the medical, psychological,
and similar records of any party without the party's voluntary, written
consent.\1137\ If the party is not an ``eligible student,'' as defined
in 34 CFR 99.3, then the recipient must obtain the voluntary, written
consent of a ``parent,'' as defined in 34 CFR 99.3.\1138\ The
Department agrees with commenters that it is unacceptable for any
person to leak or disseminate information to retaliate against another
person, and the final regulations add Sec. 106.71, which prohibits the
recipient or any other person from intimidating, threatening, coercing,
or discriminating against any individual for the purpose of interfering
with any right or privilege secured by Title IX. As discussed in this
preamble at Sec. 106.45(b)(5)(iii), the parties have a right to
discuss the allegations under investigations, but this right does not
preclude a recipient from warning the parties not to discuss or
disseminate the allegations in a manner that constitutes retaliation or
unlawful tortious conduct.
---------------------------------------------------------------------------
\1137\ Section 106.45(b)(5)(i).
\1138\ Id.
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The Department understands commenters' concerns that complaints of
other forms of student misconduct may not lead to the same grievance
process (for example, the recipient sending a written notice of
allegations to both parties) as the process required under these final
regulations for Title IX sexual harassment. However, for reasons
described above, the Department believes that both parties should have
the benefit of understanding how the recipient has framed the scope of
a sexual harassment investigation upon receipt of a formal complaint,
including sufficient details known at the time, to permit the
respondent opportunity to respond to the allegations. The Department
disagrees that this results in unwarranted ``scrutiny'' of a
complainant, and reiterates that written notice of allegations is
required only after a formal complaint has been filed; thus,
complainants need not be identified by name to a respondent upon a
report of sexual harassment, including for the purpose of obtaining
supportive measures.\1139\ However, a formal complaint alleging sexual
harassment triggers a grievance process, and in the interest of
fairness that process must commence with both parties receiving written
notice of the pertinent details of the incident under investigation. We
have removed proposed Sec. 106.44(b)(2) from these final regulations,
which provision would have required a Title IX Coordinator to file a
formal complaint upon receiving multiple reports against the same
respondent. Removal of that proposed provision reduces the likelihood
that a complainant's desire not to file a formal complaint will be
overridden by a Title IX Coordinator's decision to sign a formal
complaint.
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\1139\ Under Sec. 106.30 defining ``supportive measures''
recipients must keep confidential the provision of supportive
measures to a complainant or respondent to the extent that
maintaining confidentiality does not impair the ability of the
recipient to provide the supportive measures. Thus, unless a
particular supportive measure affects the respondent in a way that
requires the respondent to know the identity of the complainant (for
example, a mutual no-contact order), the Title IX Coordinator need
not, and should not, disclose the complainant's identity to the
respondent during the process of selecting and implementing
supportive measures for the complainant.
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The Department disagrees that using only the initials of the
parties (instead of the full names), or withholding the complainant's
identity entirely, or requiring both parties to refrain from disclosing
each other's personally identifiable information, sufficiently permits
the parties to meaningfully participate in the grievance process. The
Department reiterates that the written notice of allegations serves
both parties' interests. While complainants may often know the identity
of a respondent, in some situations a complainant does not know the
respondent's identity, but the written notice of allegations provision
ensures that if the recipient knows or discovers the respondent's
identity, the complainant is informed of that important fact. Further,
the complainant's receipt of written notice under this provision
ensures that the complainant understands the way in which the recipient
has framed the scope of the investigation so that the complainant can
meaningfully participate and advance the complainant's own interests
throughout the grievance process.\1140\
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\1140\ As discussed throughout this preamble, the final
regulations: Acknowledge the right of parents or guardians to
exercise legal rights to act on behalf of a complainant (or
respondent) in Sec. 106.6(g); give both parties the right to select
an advisor of choice and revise Sec. 106.45(b)(2) to require the
initial notice of allegations to advise parties of that right, and
to notify the parties of the recipient's grievance process which
includes a description of the range of supportive measures available
to complainants and respondents; and forbid recipients from
restricting the ability of the parties to discuss the allegations
under investigation, in Sec. 106.45(b)(5)(iii), including for the
purpose of emotional or personal support, advice, or advocacy. Thus,
these final regulations acknowledge that participation in a
grievance process is often a difficult circumstance for any party
and aim to provide numerous avenues by which a party may receive
support, assistance, and advice tailored to the party's individual
needs and wishes throughout the grievance process.
---------------------------------------------------------------------------
The Department notes that the written notice of allegations
provision does not require listing personally identifiable information
of either party beyond the ``identity'' of the parties; thus, the
written notice need not, and should not, for example, contain other
personally identifiable information such as dates of birth, social
security numbers, or home addresses, and nothing in the final
regulations precludes a recipient from directing parties not to
disclose such personally identifiable information.
The Department acknowledges that the final regulations require
identification of the parties after a formal complaint has triggered a
[[Page 30287]]
grievance process, in a way that the 2001 Guidance did not.\1141\ The
Department does not believe that anonymity during a grievance process
can lead to fair, reliable outcomes, and thus requires party identities
(to the extent they are known) to be included in the written notice of
allegations. As noted above, where a formal complaint has not been
filed by a complainant or signed by a Title IX Coordinator, the final
regulations do not require a recipient to disclose a complainant's
identity to a respondent (unless needed in order to provide a
particular supportive measure, such as a mutual no-contact order where
a respondent would need to know the identity of the person with whom
the respondent's communication is restricted). In situations where a
complainant's life is in danger from the respondent, such a situation
may present the kind of immediate threat to physical health or safety
that justifies an emergency removal of a respondent under Sec.
106.44(c). Further, nothing in the final regulations affects a
complainant's ability to seek emergency protective orders from a court
of law. The final regulations also expressly prohibit retaliation, in
Sec. 106.71, and recipients must respond to complaints of retaliation
in order to protect complainants whose identity has been disclosed as a
result of a formal complaint (or, as also discussed herein, where
providing supportive measures to the complainant necessitates the
respondent knowing the complainant's identity). Thus, in situations
where a complainant fears that disclosure to the respondent of the
complainant's identity (or the fact that the complainant has filed a
formal complaint) poses a risk of retaliation against the complainant,
the Title IX Coordinator must discuss available supportive measures and
consider the complainant's wishes regarding supportive measures
designed to protect the complainant's safety and deter sexual
harassment.
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\1141\ 2001 Guidance at 17 (``The school should inform the
student that a confidentiality request may limit the school's
ability to respond. The school also should tell the student that
Title IX prohibits retaliation and that, if he or she is afraid of
reprisals from the alleged harasser, the school will take steps to
prevent retaliation and will take strong responsive actions if
retaliation occurs. If the student continues to ask that his or her
name not be revealed, the school should take all reasonable steps to
investigate and respond to the complainant consistent with the
student's request as long as doing so does not prevent the school
from responding effectively to the harassment and preventing
harassment of other students.''); cf. id. (stating that
constitutional due process of law requires recipients that are
public institutions to disclose the complainant's identity to the
respondent and in such a situation the recipient should honor the
complainant's desire for confidentiality and not proceed to
discipline the alleged harasser.). The final regulations require
identification of the name of the complainant where a formal
complaint has been filed by a complainant or signed by a Title IX
Coordinator, not only with respect public institutions but also as
to private institutions, because constitutional due process and
fundamental fairness require the respondent to know the identity of
the alleged victim in order to meaningfully respond to the
allegations.
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The Department understands commenters' concerns that complainants
may not want to report misconduct by an employee if the complainant
cannot remain anonymous. The Department reiterates that the written
notice of allegations identifying the parties to a sexual harassment
incident is required only after a formal complaint has been filed by a
complainant or signed by a Title IX Coordinator. Complainants,
therefore, need not feel dissuaded from reporting sexual harassment by
an employee due to a desire for the complainant's identity to be
withheld from the respondent, because unless and until a formal
complaint is filed, the final regulations do not require a recipient to
disclose the complainant's identity to a respondent, including an
employee-respondent (unless the respondent must be informed of the
complainant's identity in order for the Title IX Coordinator to
effectively implement a particular supportive measure that would
necessitate the respondent knowing the complainant's identity, such as
a no-contact order). The Department understands that some recipients
may choose to question an employee-respondent about misconduct, such as
stealing or theft, without disclosing to the employee the identity of
the person who reported the theft. The Department notes that the final
regulations do not prevent a recipient from questioning an employee-
respondent about sexual harassment allegations without disclosing the
complainant's identity,\1142\ provided that the recipient does not take
disciplinary action against the respondent without first applying the
Sec. 106.45 grievance process (or unless emergency removal is
warranted under Sec. 106.44(c), or administrative leave is permitted
under Sec. 106.44(d)).
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\1142\ The Department notes that a recipient's questioning of a
respondent (whether a student or employee) about a reported sexual
harassment incident, in the absence of a formal complaint, may not
be used as part of an investigation or adjudication if a formal
complaint is later filed by the complainant or signed by the Title
IX Coordinator, because Sec. 106.45(b)(5)(v) requires that a party
be given written notice of any interview or meeting relating to the
allegations under investigation, and a recipient is precluded from
imposing disciplinary sanctions on a respondent without following
the Sec. 106.45 grievance process.
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For the reasons already mentioned, the Department declines to
require recipients to maintain the anonymity of complainants once a
formal complaint has been filed. The Department also will not require
recipients to give respondents a copy of the formal complaint. The
written notice of allegations provision already requires the recipient
to provide the date, time, alleged conduct, and identity of the
complainant, so the information required by Sec. 106.45(b)(2) provides
sufficient opportunity for the respondent to participate in the
grievance process while protecting the complainant's privacy rights to
the extent that, for example, the complainant alleged facts in the
formal complaint that are unrelated to Title IX sexual harassment and
thus do not relate to the allegations that a recipient investigates in
the grievance process.
While the Department does not decide policy matters based on public
opinion polls, the Department agrees with commenters that informing the
respondent of the ``charges against them'' represents a staple of a
fair process that increases party and public confidence in the fairness
and accuracy of Title IX proceedings, and believes that Sec.
106.45(b)(2) is an important feature of the Sec. 106.45 grievance
process.
Changes: The final regulations add Sec. 106.71 prohibiting
retaliation against any person for exercising rights under Title IX or
for participating (or refusing to participate) in a Title IX grievance
process, and revise Sec. 106.45(b)(5)(i) to prevent recipients from
using a party's treatment records without the party's (or party's
parent, if applicable) voluntary, written consent.
General Modification Suggestions
Comments: Because anything a respondent says may be used against
the respondent in subsequent proceedings at an interview regarding
sexual assault, including criminal proceedings, one commenter
recommended that Sec. 106.45(b)(2) include a statement that, when the
allegation against the respondent would constitute a felony in the
State in which the accusation is made, the respondent's silence may not
be construed as evidence of guilt or responsibility for the allegation.
Another commenter asked the Department to require the Title IX
Coordinator to email both the complainant and the respondent at least
once a week to let them know of progress, changes, and updates on their
case.
Discussion: To make clear that respondents may remain silent in
[[Page 30288]]
circumstances in which answering a question might implicate a
respondent's constitutional right to avoid self-incrimination, and to
protect other rights of the parties, Sec. 106.6(d)(2) 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. The final regulations also add to Sec.
106.45(b)(6)(i) a provision that the decision-maker must not draw
inferences about the determination regarding responsibility based on a
party's failure or refusal to appear at the hearing or answer cross-
examination questions.
The Department declines to follow the commenter's recommendation to
require the Title IX Coordinator to email both the complainant and the
respondent at least once a week to let them know of progress, changes,
and updates on their case. The recipient has discretion to be more
responsive than the final regulations require, but the final
regulations do not require the recipient to contact the parties at
least once a week. The Department notes that the final regulations
require the recipient to send notice to the parties regarding essential
case developments such as where additional allegations become part of
the investigation; where allegations or the entire formal complaint
have been dismissed; where any short-term delay or time frame extension
has been granted for good cause; and after the determination regarding
responsibility has been made.
Changes: The final regulations also add to Sec. 106.45(b)(6)(i) a
provision that the decision-maker must not draw inferences about the
determination regarding responsibility based on a party's failure or
refusal to appear at the hearing or answer cross-examination questions.
General Clarification Requests
Comments: Several commenters requested that the Department clarify
what ``sufficient time [for the respondent] to prepare a response''
means. Likewise, several commenters asked that the Department clarify
when a recipient must provide notice of any additional allegations to
the parties, asserting that Sec. 106.45(b)(2) does not define ``upon
receipt,'' but that if read literally, that phrase could suggest
``immediately upon receipt,'' which is impossible in light of the
detailed information that must be provided in the written notice. One
commenter suggested a definitive guideline (e.g., at least five
workdays after receipt) should be imposed. Commenters asserted that
ascertaining what the allegations are or how they should be phrased is
not always obvious ``upon receipt'' of a formal complaint; a degree of
fact-finding and/or analysis must be conducted first. One commenter
argued that the provision should set forth a reasonable time frame for
institutions to evaluate the information provided in a formal complaint
before issuing the notice described in 106.45(b)(2)(i). Another
commenter asked the Department to explain the consequences to
universities of violating Sec. 106.45(b)(2).
Discussion: The Department understands commenters' concerns that
sometimes preparing a written notice of the allegations requires time
for the recipient to intake a formal complaint and then compile the
details required for a written notice. The Department will not
interpret this provision to require notice to be provided
``immediately'' (and the provision does not use that word), but rather
notice must be provided early enough to allow the respondent
``sufficient time to prepare a response.'' The Department also notes
that a recipient's discretion in this regard is constrained by a
recipient's obligation to conduct a grievance process within the
recipient's designated, reasonably prompt time frames, such that
waiting to send the written notice of allegations (even without yet
conducting initial interviews with parties) could result in the
recipient failing to meet time frames applicable to its grievance
process. Whether the recipient provided the respondent ``sufficient
time'' under Sec. 106.45(b)(2) is a fact-specific determination.
Consequences for failing to comply with the final regulations include
enforcement action by the Department requiring the recipient to come
into compliance by taking remedial actions the Department deems
necessary, consistent with 20 U.S.C. 1682, and potentially placing the
recipient's Federal funding at risk.
Changes: None.
Dismissal and Consolidation of Formal Complaints
Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints
Comments: Many commenters supported proposed Sec. 106.45(b)(3)
because it obligates recipients to investigate only allegations in a
formal complaint, and thus provides the victim with control over
whether or not to trigger the formal grievance process by filing a
formal complaint. Other commenters appreciated how clear this provision
was for recipients to follow. Some commenters sought clarification with
respect to the practical application of this provision, such as what
standard would schools be held to if they initiate proceedings on their
own, but were not required to do so under Title IX. Certain commenters
asked whether a respondent could claim that the school failed to comply
with the proposed regulations and thus violated respondent's rights if
the school used separate proceedings because the respondent's alleged
conduct did not satisfy the three requirements in Sec. 106.44(a) and
Sec. 106.45(b)(3)(i). Other commenters asked whether a respondent can
use the dismissal provision to demand that a school dismiss a complaint
against the respondent.
In contrast, several comments recommended that the Department
remove any provision requiring dismissal of certain complaints so that
recipients retain institutional flexibility to investigate complaints
at their own discretion. Many commenters expressed the belief that
schools should investigate each and every claim and refrain from making
an initial determination (some viewed this initial determination as
requiring individuals to make a prima facie case) of whether the
alleged conduct satisfied the Sec. 106.30 definition of sexual
harassment. At least one commenter believed that schools should not
have to dismiss even when a victim is not actually harmed. Another
commenter stated that the proposed rules provided no avenue for
reviewing or appealing a recipient's determination as to whether the
alleged conduct satisfies the definition of sexual harassment.
Commenters asserted that the Department has no authority to forbid or
preclude schools from investigating non-Title IV matters that affect
their institutions, but only the authority to require schools to
respond to sexual harassment. Several commenters also urged the
Department to transform the provision from a mandatory provision to a
permissive provision by replacing ``must'' with ``may.'' Many
commenters opposed the dismissal provision believing that the provision
required institutions to always dismiss or ignore allegations that
occurred off-campus. Several commenters cited the concern that
dismissing a large number of off-campus complaints will disincentivize
reporting by students altogether, forcing students to go to police
departments instead.
Combined with urging the Department to expand the definition of
sexual harassment in Sec. 106.30 or alter
[[Page 30289]]
the ``education program or activity'' jurisdictional requirement in
Sec. 106.44(a) for fear that recipients will be required to dismiss
too many complaints, many commenters argued that the mandatory
dismissal language in Sec. 106.45(b)(3) effectively foreclosed
recipients from addressing sexual harassment that harms students at
alarming rates (e.g., harassment that is severe but not pervasive, or
sexual assaults of students, by other students, that occur outside the
recipient's education program or activity) even voluntarily (or under
State laws) under a recipient's non-Title IX codes of conduct.
Some commenters argued that the language in Sec. 106.45(b)(3) was
inconsistent with the language of Sec. 106.44(a) because proposed
Sec. 106.45(b)(3) omitted reference to conduct that occurred ``against
a person in the United States.''
Discussion: We appreciate commenters' support for this provision's
requirement that recipients must investigate allegations in a formal
complaint, and agree that this provides complainants with autonomy over
choosing to file a formal complaint that triggers an investigation. We
acknowledge those comments expressing the concern that as proposed,
Sec. 106.45(b)(3) effectively required recipients to make an initial
determination as to whether the alleged conduct satisfies the
definition of sexual harassment in Sec. 106.30 and whether it occurred
within the recipient's education program or activity, and to dismiss
complaints based on that initial determination, leaving recipients,
complainants, and respondents unclear about whether dismissed
allegations could be handled under a recipient's non-Title IX code of
conduct. As discussed below, we have revised Sec. 106.45(b)(3)(i) to
mirror the conditions listed in Sec. 106.44(a) (by adding ``against a
person in the United States''), and we have added language to clarify
that the mandatory dismissal in this provision is only for Title IX
purposes and does not preclude a recipient from responding to
allegations under a recipient's non-Title IX codes of conduct.
We are also persuaded by commenters who expressed concern that the
proposed rules did not provide an avenue for reviewing or appealing a
recipient's initial determination to dismiss allegations under this
provision, and we have revised Sec. 106.45(b)(3)(iii) to require the
recipient to notify the parties of a dismissal decision, and we have
revised Sec. 106.45(b)(8) to give both parties equal right to appeal a
dismissal decision.
The Sec. 106.45 grievance process obligates recipients to
investigate and adjudicate allegations of sexual harassment for Title
IX purposes; the Department does not have authority to require
recipients to investigate and adjudicate misconduct that is not covered
under Title IX, nor to preclude a recipient from handling misconduct
that does not implicate Title IX in the manner the recipient deems fit.
In response to commenters' concerns, the final regulations clarify that
dismissal is mandatory where the allegations, if true, would not meet
the Title IX jurisdictional conditions (i.e., Sec. 106.30 definition
of sexual harassment, against a person in the United States, in the
recipient's education program or activity), reflecting the same
conditions that trigger a recipient's response under Sec. 106.44(a).
The criticism of many commenters was well-taken as to the lack of
clarity in the proposed rules regarding a recipient's discretion to
address allegations subject to the mandatory dismissal through non-
Title IX code of conduct processes. The final regulations therefore
revise Sec. 106.45(b)(3)(i) to expressly state (emphasis added) that
``the recipient must dismiss the formal complaint with regard to that
conduct for purposes of sexual harassment under title IX or this part;
such a dismissal does not preclude action under another provision of
the recipient's code of conduct.'' The Department notes that recipients
retain the flexibility to employ supportive measures in response to
allegations of conduct that does not fall under Title IX's purview, as
well as to investigate such conduct under the recipient's own code of
conduct at the recipient's discretion. This clarifies that the
Department does not intend to dictate how a recipient responds with
respect to conduct that does not meet the conditions specified in Sec.
106.44(a). For similar reasons, the Department does not believe that it
has the authority to make dismissal optional by changing ``must
dismiss'' to ``may dismiss'' because that change would imply that if a
recipient chose not to dismiss allegations about conduct that does not
meet the conditions specified in Sec. 106.44(a), the Department would
nonetheless hold the recipient accountable for following the prescribed
grievance process, but the Sec. 106.45 grievance process is only
required for conduct that falls under Title IX. The Department
therefore retains the mandatory dismissal language in this provision
and adds the clarifying language described above. Thus, these final
regulations leave recipients discretion to address allegations of
misconduct that do not trigger a recipient's Title IX response
obligations due to not meeting the Section 106.30 definition of sexual
harassment, not occurring in the recipient's education program or
activity, or not occurring against a person in the U.S.
Changes: We are revising Sec. 106.45(b)(3)(i) to add ``against a
person in the United States'' to align this provision with the
conditions stated in Sec. 106.44(a). We are also revising Sec.
106.45(b)(3)(i) to clarify that a mandatory dismissal under this
provision is a dismissal for purposes of Title IX and does not preclude
action under another provision of the recipient's code of conduct. We
add Sec. 106.45(b)(3)(iii) to require recipients to send the parties
written notice of any dismissal decision, and we have revised Sec.
106.45(b)(8) to give both parties equal rights to appeal a recipient's
dismissal decisions.
Section 106.45(b)(3)(ii)-(iii) Discretionary Dismissals/Notice of
Dismissal
Comments: Some commenters suggested that the Department provide
greater flexibility to institutions to decide whether or not a full
investigation is merited. For instance, some commenters suggested that
in circumstances involving a frivolous accusation, a matter that has
already been investigated, complaints by multiple complainants none of
whom are willing to participate in the grievance process, or when there
has been an unreasonable delay in filing that could prejudice the
respondent, the Department should grant institutions greater
flexibility to determine whether or not to start or continue a formal
investigation. At least one commenter suggested that, if greater
flexibility were provided, institutions should also be required to
document why they did not choose to conduct a formal investigation.
Other commenters requested that the Department expand victims' options
for institutional responses to include non-adversarial choices.
Discussion: We are persuaded by the commenters urging the
Department to grant recipients greater discretion and flexibility to
dismiss formal complaints under certain circumstances. Accordingly, we
are revising Sec. 106.45(b)(3) to permit discretionary dismissals.
Specifically, the Department is adding Sec. 106.45(b)(3)(ii), which
allows (but does not require) recipients to dismiss formal complaints
in three specified circumstances: Where a complainant notifies the
Title IX
[[Page 30290]]
Coordinator in writing that the complainant would like to withdraw the
formal complaint or any allegations therein; where the respondent is no
longer enrolled or employed by the recipient; or where specific
circumstances prevent the recipient from gathering evidence sufficient
to reach a determination as to the allegations contained in the formal
complaint.
The Department believes that Sec. 106.45(b)(3)(ii) reaffirms the
autonomy of complainants and their ability to choose to remove
themselves from the formal grievance process at any point, while
granting recipients the discretion to proceed with an investigation
against a respondent even where the complainant has requested that the
formal complaint or allegations be withdrawn (for example, where the
recipient has gathered evidence apart from the complainant's statements
and desires to reach a determination regarding the respondent's
responsibility). By granting recipients the discretion to dismiss in
situations where the respondent is no longer a student or employee of
the recipient, the Department believes this provision appropriately
permits a recipient to make a dismissal decision based on reasons that
may include whether a respondent poses an ongoing risk to the
recipient's community, whether a determination regarding responsibility
provides a benefit to the complainant even where the recipient lacks
control over the respondent and would be unable to issue disciplinary
sanctions, or other reasons.\1143\ The final category of discretionary
dismissals addresses situations where specific circumstances prevent a
recipient from meeting the recipient's burden to collect evidence
sufficient to reach a determination regarding responsibility; for
example, where a complainant refuses to participate in the grievance
process (but also has not decided to send written notice stating that
the complainant wishes to withdraw the formal complaint), or where the
respondent is not under the authority of the recipient (for instance
because the respondent is a non-student, non-employee individual who
came onto campus and allegedly sexually harassed a complaint), and the
recipient has no way to gather evidence sufficient to make a
determination, this provision permits dismissal. The Department wishes
to emphasize that this provision is not the equivalent of a recipient
deciding that the evidence gathered has not met a probable or
reasonable cause threshold or other measure of the quality or weight of
the evidence, but rather is intended to apply narrowly to situations
where specific circumstances prevent the recipient from meeting its
burden in Sec. 106.45(b)(5)(i) to gather sufficient evidence to reach
a determination. Accordingly, a recipient should not apply a
discretionary dismissal in situations where the recipient does not know
whether it can meet the burden of proof under Sec. 106.45(b)(5)(i).
Decisions about whether the recipient's burden of proof has been
carried must be made in accordance with Sec. Sec. 106.45(b)(6)-(7)--
not prematurely made by persons other than the decision-maker, without
following those adjudication and written determination requirements.
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\1143\ The Department notes that the Elementary and Secondary
Education Act of 1965 (ESEA), as amended by the Every Student
Succeeds Act (ESSA), may require a recipient subject to ESEA to take
certain steps with respect to an employee who has been accused of
sexual misconduct and that continuing a Title IX sexual harassment
investigation even when the accused employee has left the
recipient's employ may assist the recipient in knowing whether the
recipient does, or does not, have probable cause to believe the
employee engaged in sexual misconduct. E.g., https://www2.ed.gov/policy/elsec/leg/essa/section8546dearcolleagueletter.pdf.
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The Department declines to authorize a discretionary dismissal for
``frivolous'' or ``meritless'' allegations because many commenters have
expressed to the Department well-founded concerns that complainants
have faced disbelief or skepticism when reporting sexual harassment,
and the Department believes that where a complainant has filed a formal
complaint, the recipient must be required to investigate the
allegations without dismissing based on a conclusion that the
allegations are frivolous, meritless, or otherwise unfounded, 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. In making the
revisions to Sec. 106.45(b)(3)(ii) authorizing three grounds for a
discretionary dismissal of a formal complaint (or allegations therein),
the Department believes it is reaching a fair balance between
obligating the recipient to fully investigate all allegations that a
complainant has presented in a formal complaint, with the recognition
that certain circumstances render completion of an investigation
futile. Because these three grounds for dismissal are discretionary
rather than mandatory, the recipient retains discretion to take into
account the unique facts and circumstances of each case before reaching
a dismissal decision.
Finally, we are also persuaded by commenters' recommendations that
the Department offer the parties an appeal from a recipient's dismissal
decisions. The final regulations add Sec. 106.45(b)(3)(iii) requiring
that the recipient promptly send the parties written notice so that the
parties know when a formal complaint (or allegations therein) has been
dismissed (whether under mandatory dismissal, or discretionary
dismissal), including the reason for the dismissal. This requirement
promotes a fair process by informing both parties of recipient's
actions during the grievance process particularly as to a matter as
significant as a dismissal of a formal complaint (or allegations
therein). Including an explicit notice requirement under this provision
is also consistent with the Department's goal of providing greater
clarity and transparency as to a recipient's obligations and what the
parties to a formal grievance process can expect. The final regulations
also revise the appeals provision at Sec. 106.45(b)(8) to allow the
parties equal opportunity to appeal any dismissal decision of the
recipient.
Changes: The Department is adding Sec. 106.45(b)(3)(ii) to specify
three situations where a recipient is permitted but not required to
dismiss a formal complaint: Where a complainant notifies the Title IX
Coordinator in writing that the complainant would like to withdraw the
formal complaint or any allegations therein; where the respondent is no
longer enrolled or employed by the recipient; or where specific
circumstances prevent the recipient from gathering evidence sufficient
to reach a determination as to the allegations contained in the formal
complaint. The Department is also adding Sec. 106.45(b)(3)(iii) to
require a recipient to notify the parties, in writing, as to any
mandatory or discretionary dismissal and reasons for the dismissal. We
also revise the appeals provision at Sec. 106.45(b)(8) to allow the
parties equal opportunity to appeal any dismissal decision of the
recipient.
Section 106.45(b)(4) Consolidation of Formal Complaints
Comments: One commenter suggested revising references to ``both
parties'' to ``all parties'' to account for incidents that involve more
than two parties. One commenter criticized the proposed rules for
seeming to contemplate that sexual harassment incidents only involve a
single victim and a single perpetrator and failing to acknowledge that
the process may involve multiple groups of people on either side.
Another
[[Page 30291]]
commenter asked the Department to explain how a single incident
involving multiple parties would be handled. A few commenters asserted
that some recipients have a practice of not allowing a respondent to
pursue a counter-complaint against an original complainant, resulting
in what one commenter characterized as an unfair rule that amounts to
``first to file, wins.''
Discussion: In response to commenters' concerns that the proposed
rules did not sufficiently provide clarity about situations involving
multiple parties, and in response to commenters who asserted that
recipients have not always understood how to handle a complaint filed
by one party against the other party, the Department adds Sec.
106.45(b)(4), addressing consolidation of formal complaints. The
Department believes that recipients and parties will benefit from
knowing that recipients have discretion to consolidate formal
complaints in situations that arise out of the same facts or
circumstances and involve more than one complainant, more than one
respondent, or what amount to counter-complaints by one party against
the other. Section 106.45(b)(4) further clarifies that where a
grievance process involves more than one complainant or respondent,
references to the singular ``party,'' ``complainant'' or ``respondent''
include the plural.
Changes: The final regulations add Sec. 106.45(b)(4) to give
recipients discretion to consolidate formal complaints of sexual
harassment where the allegations of sexual harassment arise out of the
same facts or circumstances. Where a grievance process involves more
than one complainant or more than one respondent, references in Sec.
106.45 to the singular ``party,'' ``complainant,'' or ``respondent''
include the plural, as applicable.
Investigation
Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence Rest on
the Recipient
Comments: Some commenters supported this provision based on
personal stories involving the recipient placing the burden of proof on
a party when the party had no rights to interview witnesses or inspect
locations involved in the incident. One commenter supported this
provision because it is entirely appropriate that complainants not be
assigned the burden of proof or burden of producing evidence since they
are seeking equal access to education and it is the school that should
provide equal access, and removing these burdens from the shoulders of
the respondent is also an important part of the accused's presumption
of innocence. One commenter supported placing the burden of proof on
the recipient because it is always the school's responsibility to
ensure compliance with Title IX.
Some commenters believe that placing the burden of proof on the
recipient is tantamount to putting it on the survivor(s) to prove all
the elements of the assault, which is an impossible burden and which
will deter survivor(s) from reporting and recovering from the assault.
One commenter supported placing the burden of gathering evidence on the
recipient but not the burden of proof because the recipient is not a
party to the proceeding. Some commenters expressed concern that this
provision of the final regulations will cause instability in the system
because placing the burden of gathering evidence on the recipient
suggests an adversarial rather than educational process and opens
recipients up to charges that the recipient failed to do enough to
gather evidence. Various commenters also contended that this provision
of the final regulations is too strict and demanding. Some commenters
suggested that Title IX requires only that an institution demonstrate
that it did not act with deliberate indifference when it had actual
knowledge of sexual harassment or sexual assault--not proving whether
each factual allegation in a complaint has merit--and that requiring a
recipient to prove each allegation is a burden that Title IX itself has
not imposed on recipients.
Some commenters suggested explaining what the recipient can and
cannot do in pursuit of gathering evidence, or limiting the recipient's
burden to gathering evidence ``reasonably available.'' Other commenters
suggested requiring the recipient to investigate all reasonable leads
and interview all witnesses identified by the parties.
Discussion: The Department appreciates commenters' support for
Sec. 106.45(b)(5)(i). The Department agrees with commenters who
asserted that the recipient is responsible for ensuring equal access to
education programs and activities and should not place the burden of
gathering relevant evidence, or meeting a burden of proof, on either
party; Title IX obligates recipients to operate education programs and
activities free from sex discrimination, and does not place burdens on
students or employees who are seeking to maintain the equal educational
access that recipients are obligated to provide. The Department
believes that Sec. 106.45(b)(5)(i) is important to providing a fair
process to both parties by taking the burden of factually determining
which situations require redress of sexual harassment off the shoulders
of the parties. At the same time, the final regulations ensure that
parties may participate fully and robustly in the investigation
process, by gathering evidence, presenting fact and expert witnesses,
reviewing the evidence gathered, responding to the investigative report
that summarizes relevant evidence, and asking questions of other
parties and witnesses before a decision-maker has reached a
determination regarding responsibility.
The Department disagrees that Sec. 106.45(b)(5)(i) places a de
facto burden of proof on the complainant to prove the elements of an
alleged assault, and disagrees that this provision is likely to chill
reporting. To the contrary, this provision clearly prevents a recipient
from placing that burden on a complainant (or a respondent). The
Department disagrees that the recipient should bear the burden of
producing evidence yet not bear the burden of proof at the
adjudication; the Department recognizes that the recipient is not a
party to the proceeding, but this does not prevent the recipient from
presenting evidence to the decision-maker, who must then objectively
evaluate relevant evidence (both inculpatory and exculpatory) and reach
a determination regarding responsibility. Nothing about having to carry
the burden of proof suggests that the recipient must desire or advocate
for meeting (or not meeting) the burden of proof; to the contrary, the
final regulations contemplate that the recipient remains objective and
impartial throughout the grievance process, as emphasized by requiring
a recipient's Title IX personnel involved in a grievance process to
serve free from bias and conflicts of interest and to be trained in how
to serve impartially and how to conduct a grievance process.\1144\
Whether the evidence gathered and presented by the recipient (i.e.,
gathered by the investigator and with respect to relevant evidence,
summarized in an investigative report) does or does not meet the burden
of proof, the recipient's obligation is the same: To respond to the
determination regarding responsibility by complying with Sec. 106.45
(including effectively implementing remedies for the complainant if the
respondent is determined to be responsible).\1145\
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\1144\ Section 106.45(b)(1)(iii).
\1145\ Section 106.45(b)(1)(i); Sec. 106.45(b)(7)(iv).
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[[Page 30292]]
The Department recognizes that bearing the burden of proof may seem
uncomfortable for recipients who do not wish to place themselves
``between'' two members of their community or be viewed as prosecutors
adversarial to the respondent. The Department does not believe that
this provision makes Title IX proceedings more adversarial; rather,
these proceedings are inherently adversarial, often involving competing
plausible narratives and high stakes for both parties, and recipients
are obligated to identify and address sexual harassment that occurs in
the recipient's education program or activity. The final regulations do
not require a recipient to take an adversarial posture with respect to
either party, and in fact require impartiality. Ultimately, however,
the recipient itself must take action in response to the determination
regarding responsibility that directly affects both parties, and it is
the recipient's burden to impartially gather evidence and present it so
that the decision-maker can determine whether the recipient (not either
party) has shown that the weight of the evidence reaches or falls short
of the standard of evidence selected by the recipient for making
determinations. The Department is aware that the final regulations
contemplate a recipient fulfilling many obligations that, while
performed by several different individuals, are legally attributable to
the recipient itself. However, this does not mean that the recipient,
having appropriately designated individuals to perform certain roles in
fulfillment of the recipient's obligations, cannot meet a burden to
gather and collect evidence, present the evidence to a decision-maker,
and reach a fair and accurate determination. Thus, the Department
disagrees that this provision is too strict or demanding.
The Department agrees that the Supreme Court framework for private
Title IX litigation applies a deliberate indifference standard to known
sexual harassment (including reports or allegations of sexual
harassment). As explained in the ``Adoption and Adaption of the Supreme
Court's Framework to Address Sexual Harassment'' section of this
preamble, the Department intentionally adopts that framework, and
adapts it for administrative enforcement purposes so that these final
regulations hold a recipient liable not only when the recipient may be
deemed to have intentionally committed sex discrimination (i.e., by
being deliberately indifferent to actual knowledge of actionable sexual
harassment) but also when a recipient has violated regulatory
obligations that, while they may not purport to represent definitions
of sex discrimination are required in order to further Title IX's non-
discrimination mandate. One of the ways in which the Department adapts
that framework is concluding that where a complainant wants a recipient
to investigate allegations, the recipient must conduct an investigation
and adjudication, and provide remedies to that complainant if the
respondent is found responsible. While this response may or may not be
required in private Title IX lawsuits, the Department has determined
that a consistent, fair grievance process to resolve sexual harassment
allegations, under the conditions prescribed in the final regulations,
effectuates the purpose of Title IX to provide individuals with
effective protections against discriminatory practices.
The Department appreciates commenters' suggestions that this
provision be narrowed (e.g., to state that the burden is to gather
evidence ``reasonably available'') or broadened (e.g., to require
investigation of ``all'' leads or interviews of all witnesses), or to
further specify steps a recipient must take to gather evidence. The
Department believes that the scope of Sec. 106.45(b)(5)(i)
appropriately obligates a recipient to undertake a thorough search for
relevant facts and evidence pertaining to a particular case, while
operating under the constraints of conducting and concluding the
investigation under designated, reasonably prompt time frames and
without powers of subpoena. Such conditions limit the extensiveness or
comprehensiveness of a recipient's efforts to gather evidence while
reasonably expecting the recipient to gather evidence that is
available.
Changes: None.
Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses and
Other Inculpatory/Exculpatory Evidence
Comments: Many commenters supported Sec. 106.45(b)(5)(ii),
asserting that it will provide equal opportunity for the parties to
present witnesses and other evidence. Commenters stated that this
provision will make the grievance process clearer, provide more
reliable outcomes, and afford participants important due process
protections. One commenter asserted that this provision will create
greater uniformity between Title IX regulations and other justice
systems in the U.S. designed to deal with similar issues. This
commenter also asserted that this provision will reduce the risk of a
false positive guilty finding for an innocent student accused of sexual
harassment.
At the same time, one commenter expressed concerns that allowing
respondents to hear the complainant's evidence and learn the identity
of the complainants' witnesses will enable the respondent to intimidate
the complainant, intimidate the complainant's witnesses, or spread lies
about the complainant. Another commenter argued that previous guidance
and regulations already allowed for schools to give each party a chance
to present evidence, so the proposed rules are superfluous.
Several commenters recounted personal stories about Title IX
Coordinators failing to consider a respondent's exculpatory evidence,
including refusing to ask questions the respondent wished to ask the
complainant or the complainant's witnesses, and refusing to speak with
the respondent's witnesses. One commenter submitted a personal story
about the recipient never providing the respondent with the
complainant's evidence, which the commenter contended severely hindered
the respondent's ability to defend against the complainant's
allegations.
One commenter stated approvingly that a provision similar to Sec.
106.45(b)(5)(ii) also appears in the Harvard Law School Sexual and
Gender-Based Harassment Policy, under which all parties are afforded
due process protections, including the right to present evidence and
witnesses at a live hearing before an impartial decision maker. Another
commenter suggested that Sec. 106.45(b)(5)(ii) should give the parties
an equal opportunity to identify witnesses.
One commenter believed that the provision is consistent with the
Sixth Amendment right to confront adverse witnesses, call favorable
witnesses, as well as the right to effective assistance of counsel. The
commenter argued that some universities have a practice refusing
respondents the assistance of counsel, which meant that a young person
must defend against trained, seasoned Title IX Coordinators who often
serve as the investigator (and sometimes also the decision-maker) in a
case. The commenter also cited numerous situations of students being
prevented from introducing exculpatory evidence ostensibly on the basis
of the complex rules of evidence applied in courtrooms that
universities purport to apply to Title IX proceedings, yet universities
selectively apply court-based evidentiary rules in ways designed to
disadvantage respondents. Commenters asserted that universities
[[Page 30293]]
allow hearsay and other evidence into Title IX proceedings under the
argument that the hearings are an ``informal'' or an ``educational''
process where more relaxed rules are applied, yet do not carefully
apply all the court evidentiary rules that ensure hearsay evidence is
reliable before being admissible, and at the same time refuse to allow
respondents to cross-examine witnesses who are making non-hearsay
statements at a hearing.
One commenter asked the Department to require recipients to provide
training materials to parties upon request. The commenter requested
that the training materials must explain what evidence may or may not
be considered in light of what the commenter believed is bias that most
Title IX Coordinators hold in favor of victims.
Discussion: The Department agrees with commenters who asserted that
Sec. 106.45(b)(5)(ii) will improve the grievance process for all
parties, and appreciates references to the beneficial impact of other
laws and policies (including Department guidance) that include similar
provisions.\1146\ The Department acknowledges the personal experiences
shared by commenters describing instances in which recipients have
ignored, discounted, or denied opportunities to introduce exculpatory
evidence, and the Department also acknowledges that other commenters
recounted personal experiences involving recipients ignoring,
discounting, or denying opportunity to introduce inculpatory evidence
(by, for example, showing evidence to a respondent or respondent's
attorney without showing it to the complainant). The Department
appreciates that many recipients already require Title IX personnel to
allow both parties equal opportunity to present evidence and witnesses,
but in light of commenters' anecdotal evidence and for reasons
discussed in the ``Role of Due Process in the Grievance Process''
section of this preamble, the reality and perception is that too many
recipients fail to consider inculpatory or exculpatory evidence
resulting in real and perceived injustices for complainants and
respondents. Equal opportunity to present inculpatory evidence and
exculpatory evidence, including fact witnesses and expert witnesses, is
an important procedural right and protection for both parties, and will
improve the reliability and legitimacy of the outcomes recipients reach
in Title IX sexual harassment grievance processes.
---------------------------------------------------------------------------
\1146\ As discussed throughout this preamble, including in the
``Support and Opposition for the Grievance Process in the Sec.
106.45 Grievance Process'' and the ``Role of Due Process in the
Grievance Process'' sections of this preamble, the Department has
considered grievance procedures in use by particular recipients,
prescribed under various State and other Federal laws, recommended
by advocacy organizations, and from other sources, and has
intentionally crafted the Sec. 106.45 grievance process to contain
those procedural rights and protections that best serve Title IX's
non-discrimination mandate, comport with constitutional due process
and fundamental fairness, and may reasonably be implemented in the
context of an educational institution as opposed to courts of law.
---------------------------------------------------------------------------
The Department received numerous comments expressing concern about
the potential for retaliation and recounting experiences of retaliation
suffered by complainants and respondents. The Department has added
Sec. 106.71 in these final regulations, explicitly prohibiting any
person from intimidating, threatening, coercing, or discriminating
against another individual for the purpose of interfering with any
right or privilege secured by Title IX. The retaliation provision also
requires that the identities of complainants, respondents, and
witnesses must be kept confidential, except as permitted by FERPA,
required by law, or to the extent necessary to carry out a Title IX
grievance process. Section 106.71 also authorizes parties to file
complaints alleging retaliation under Sec. 106.8(c) which requires
recipients to adopt and publish grievance procedures that provide for
the prompt and equitable resolution of complaints of sex
discrimination. The Department believes that this provision will deter
retaliation, as well as afford parties and the recipient the
opportunity promptly to redress retaliation that does occur.
In response to commenters who asserted that recipients should
specify in their materials used to train Title IX personnel what
evidence is relevant or admissible, we have revised Sec.
106.45(b)(1)(iii) to require a recipient's investigators and decision-
makers to receive training on issues of relevance,\1147\ including for
a decision-maker training on when questions about a complainant's prior
sexual history are deemed ``not relevant'' under Sec. 106.45(b)(6).
Section 106.45(b)(1)(iii) continues to require training on how to
conduct an investigation and grievance process, such that each aspect
of a recipient's procedural rules (including evidentiary rules) that a
recipient must adopt in order to comply with these regulations, and any
additional rules that are consistent with these final
regulations,\1148\ must be included in the training for a recipient's
Title IX personnel. Further, if a recipient trains Title IX personnel
to evaluate, credit, or assign weight to types of relevant, admissible
evidence, that topic will be reflected in the recipient's training
materials. The Department agrees with commenters who urged the
Department to require that the recipients publicize their training
materials, because such a requirement will improve the transparency of
a recipient's grievance process. Accordingly, the Department requires
recipients to make materials used to train a recipient's Title IX
personnel publicly available on recipients' websites, under Sec.
106.45(b)(10).
---------------------------------------------------------------------------
\1147\ For discussion of these final regulations' requirement
that relevant evidence, and only relevant evidence, must be
objectively evaluated to reach a determination regarding
responsibility, and the specific types of evidence that these final
regulations deem irrelevant or excluded from consideration in a
grievance process (e.g., a complainant's prior sexual history, any
party's medical, psychological, and similar records, any information
protected by a legally recognized privilege, and (as to
adjudications by postsecondary institutions), party or witness
statements that have not been subjected to cross-examination at a
live hearing, see the ``Hearings'' subsection of the ``Section
106.45 Recipient's Response to Formal Complaints'' section of this
preamble.
\1148\ The revised introductory sentence of Sec. 106.45(b)
expressly allows recipients to adopt rules that apply to the
recipient's grievance process, other than those required under Sec.
106.45, so long as such additional rules apply equally to both
parties. For example, a postsecondary institution recipient may
adopt reasonable rules of order and decorum to govern the conduct of
live hearings.
---------------------------------------------------------------------------
Changes: We are revising Sec. 106.45(b)(5)(ii) to require
recipients to provide an equal opportunity for all parties to present
both fact and expert witnesses. We are also revising Sec.
106.45(b)(10) to require recipients to make the materials used to train
Title IX personnel publicly available on recipients' websites or, if a
recipient does not have a website, available upon request for
inspection by members of the public. We have also added Sec. 106.71 to
the final regulations to expressly prohibit retaliating against any
individual for exercising rights under Title IX.
Comments: One commenter requested the Department to modify Sec.
106.45(b)(5)(ii) to expressly allow a party's mental health history to
be introduced as evidence. One commenter argued that the respondent
should be permitted to admit as evidence instances where the
complainant had accused other students of sexual misconduct in the
past. One commenter argued that complainants often receive the benefit
of certain types of evidence, such as hearsay and victim impact
statements, while respondents are denied the use of the same evidence
and arguments. The commenter asked the Department to level the playing
field by allowing respondents to write their own
[[Page 30294]]
impact statement and present evidence such as the results of lie
detector tests if the hearing allows complainants the use of similar
evidence. Another commenter asked the Department to direct recipients
to exclude irrelevant evidence.
One commenter suggested that, at the initial complaint stage,
complainants should be able to present additional evidence to prevent
the recipient from quickly dismissing the complainant's complaint and
if the complainant can provide sufficient evidence, then the commenter
asked the Department to require the recipient to open a case and
investigate the allegations. A few commenters asked the Department to
afford both parties the right to present evidence, not just at the
investigation stage, but also during the hearings themselves and during
the appeal process. One commenter suggested that the Department should
require recipients to consider new evidence at the hearing, including
evidence of retaliation or additional harassment by the respondent.
Discussion: A recipient's grievance process must objectively
evaluate all relevant evidence (Sec. 106.45(b)(1)(ii)). Section
106.45(b)(5)(iii) of these final regulations requires the recipients to
refrain from restricting the ability of either party to gather and
present relevant evidence. Section 106.45(b)(5)(vi) permits both
parties equal opportunity to inspect and review all evidence directly
related to the allegations. Section 106.45(b)(6)(i)-(ii) directs the
decision-maker to allow parties to ask witnesses all relevant questions
and follow-up questions, and Sec. 106.45(b)(6)(i) expressly states
that only relevant cross-examination questions may be asked at a live
hearing. The requirement for recipients to summarize and evaluate
relevant evidence, and specification of certain types of evidence that
must be deemed not relevant or are otherwise inadmissible in a
grievance process pursuant to Sec. 106.45, appropriately directs
recipients to focus investigations and adjudications on evidence
pertinent to proving whether facts material to the allegations under
investigation are more or less likely to be true (i.e., on what is
relevant). At the same time, Sec. 106.45 deems certain evidence and
information not relevant or otherwise not subject to use in a grievance
process: Information protected by a legally recognized privilege;
\1149\ evidence about a complainant's prior sexual history; \1150\ any
party's medical, psychological, and similar records unless the party
has given voluntary, written consent; \1151\ and (as to adjudications
by postsecondary institutions), party or witness statements that have
not been subjected to cross-examination at a live hearing.\1152\
---------------------------------------------------------------------------
\1149\ Section 106.45(b)(1)(x).
\1150\ Section 106.45(b)(6)(i)-(ii).
\1151\ Section 106.45(b)(5)(i).
\1152\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------
These final regulations require objective evaluation of relevant
evidence, and contain several provisions specifying types of evidence
deemed irrelevant or excluded from consideration in a grievance
process; a recipient may not adopt evidentiary rules of admissibility
that contravene those evidentiary requirements prescribed under Sec.
106.45. For example, a recipient may not adopt a rule excluding
relevant evidence whose probative value is substantially outweighed by
the danger of unfair prejudice; although such a rule is part of the
Federal Rules of Evidence, the Federal Rules of Evidence constitute a
complex, comprehensive set of evidentiary rules and exceptions designed
to be applied by judges and lawyers, while Title IX grievance processes
are not court trials and are expected to be overseen by layperson
officials of a school, college, or university rather than by a judge or
lawyer. Similarly, a recipient may not adopt rules excluding certain
types of relevant evidence (e.g., lie detector test results, or rape
kits) where the type of evidence is not either deemed ``not relevant''
(as is, for instance, evidence concerning a complainant's prior sexual
history \1153\) or otherwise barred from use under Sec. 106.45 (as is,
for instance, information protected by a legally recognized privilege
\1154\). However, the Sec. 106.45 grievance process does not prescribe
rules governing how admissible, relevant evidence must be evaluated for
weight or credibility by a recipient's decision-maker, and recipients
thus have discretion to adopt and apply rules in that regard, so long
as such rules do not conflict with Sec. 106.45 and apply equally to
both parties.\1155\ In response to commenters' concerns that the final
regulations do not specify rules about evaluation of evidence, and
recognizing that recipients therefore have discretion to adopt rules
not otherwise prohibited under Sec. 106.45, the final regulations
acknowledge this reality by adding language to the introductory
sentence of Sec. 106.45(b): ``Any provisions, rules, or practices
other than those required by Sec. 106.45 that a recipient adopts as
part of its grievance process for handling formal complaints of sexual
harassment, as defined in Sec. 106.30, must apply equally to both
parties.'' A recipient may, for example, adopt a rule regarding the
weight or credibility (but not the admissibility) that a decision-maker
should assign to evidence of a party's prior bad acts, so long as such
a rule applied equally to the prior bad acts of complainants and the
prior bad acts of respondents. Because a recipient's investigators and
decision-makers must be trained specifically with respect to ``issues
of relevance,'' \1156\ any rules adopted by a recipient in this regard
should be reflected in the recipient's training materials, which must
be publicly available.\1157\
---------------------------------------------------------------------------
\1153\ Section 106.45(b)(6)(i)-(ii).
\1154\ Section 106.45(b)(1)(x).
\1155\ Section 106.45(b) (introductory sentence).
\1156\ Section 106.45(b)(1)(iii).
\1157\ Section 106.45(b)(10)(i)(D).
---------------------------------------------------------------------------
As to a commenter's request that the Department require the
recipient to investigate a complaint of sexual harassment or assault if
the complainant can supply enough evidence to overcome the recipient's
dismissal, the final regulations address mandatory and discretionary
dismissals, including expressly giving both parties the right to appeal
a recipient's dismissal decision, and one basis of appeal expressly
includes where newly discovered evidence may affect the outcome.\1158\
Thus, if a recipient dismisses a formal complaint under Sec.
106.45(b)(3)(i) because, for instance, the recipient concludes that the
misconduct alleged does not meet the definition of sexual harassment in
Sec. 106.30, the complainant can appeal that dismissal, for example by
asserting that newly discovered evidence demonstrates that the
misconduct in fact does meet the Sec. 106.30 definition of sexual
harassment, or alternatively by asserting procedural irregularity on
the basis that the alleged conduct in fact does meet the definition of
Sec. 106.30 sexual harassment and thus mandatory dismissal was
inappropriate under Sec. 106.45(b)(3)(i).
---------------------------------------------------------------------------
\1158\ Section 106.45(b)(8).
---------------------------------------------------------------------------
As to commenters' request to allow both parties to introduce new
evidence at every stage, including the hearing and on appeal, the final
regulations require recipients to allow both parties equally to appeal
on certain bases including newly discovered evidence that may affect
the outcome of the matter (as well as on the basis of procedural
irregularity, or conflict of interest of bias, that may have affected
the outcome).\1159\ For reasons discussed above, the Department
declines to be
[[Page 30295]]
more prescriptive than the Department believes is necessary to ensure a
consistent, fair grievance process, and thus leaves decisions about
other circumstances under which a party may offer or present evidence
in the recipient's discretion, so long as a recipient's rules in this
regard comply with Sec. 106.45(b)(5)(ii) by giving ``equal
opportunity'' to both parties to present witnesses (including fact
witnesses and expert witnesses) and other evidence (including
inculpatory and exculpatory evidence).
---------------------------------------------------------------------------
\1159\ Id.
---------------------------------------------------------------------------
Changes: The Department is revising Sec. 106.45(b)(5)(ii) to add
the phrase ``including fact and expert witnesses'' to clarify that the
equal opportunity to present witnesses must apply to experts. The final
regulations also add language to the introductory sentence of Sec.
106.45(b) stating that rules adopted by a recipient for use in the
grievance process must apply equally to both parties. We have also
added Sec. 106.45(b)(1)(x) prohibiting use of information protected by
a legally recognized privilege. We have also revised Sec.
106.45(b)(5)(i) prohibiting use of a party's medical, psychological,
and other treatment records without the party's voluntary, written
consent.
Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability of
Either Party To Discuss Allegations or Gather and Present Relevant
Evidence
Comments: Some commenters expressed support for Sec.
106.45(b)(5)(iii), noting that First Amendment free speech issues are
implicated when schools impose ``gag orders'' on parties' ability to
speak about a Title IX situation. A few commenters noted that
recipients' application of gag orders ends up preventing parties from
collecting evidence by preventing them from talking to possible
witnesses, and even from calling parents or friends for support.
Many commenters argued that this provision will harm survivors and
chill reporting because survivors often feel severe distress when other
students know of the survivor's report, or experience stigma and
backlash when other students find out the survivor made a formal
complaint, which deters reporting.\1160\ Other commenters argued that a
provision that permits sensitive information to be disseminated and
even published on social media or campus newspapers results in loss of
privacy and anonymity that betrays already-traumatized survivors. Other
commenters opposed this provision fearing it will negatively affect
both parties by leading to gossip, shaming, retaliation, and
defamation. Other commenters believed this provision opens the door to
witness or evidence tampering and intimidation and/or interference with
the investigation. Other commenters asserted that the final regulations
should permit each party to identify witnesses but then permit only the
recipient to discuss the allegations with the witnesses, because
witnesses might be more forthcoming with an investigator than with a
party.
---------------------------------------------------------------------------
\1160\ Commenters cited: Alan M. Gross et al., An examination of
sexual violence against college women, 12 Violence Against Women 3
(2006).
---------------------------------------------------------------------------
Some commenters believed that with regard to elementary and
secondary schools, the final regulations should clarify the extent to
which this provision applies because common sense suggests that a
school administrator, such as a principal, should be able to restrict a
student from randomly or maliciously discussing allegations of sexual
harassment without impeding the student's ability to participate in the
formal complaint process.
Several commenters urged the Department to modify this provision in
one or more of the following ways: The parties must be permitted to
discuss allegations only with those who have a need to know those
allegations; the recipient may limit any communication to solely
neutral communication specifically intended to gather witnesses and
evidence or participate in the grievance process; the recipient may
limit the parties' communication or contact with each other during the
investigation and prohibit disparaging communications, if those limits
apply equally to both parties; recipients must be permitted to restrict
the discussion or dissemination of materials marked as confidential;
while parties should be allowed to discuss the general nature of the
allegations under investigation, recipients should have the authority
to limit parties from discussing specific evidence provided under Sec.
106.45(b)(5)(vi) with anyone other than their advisor; the evidence
discussed should be limited to that which is made accessible to the
decision-maker(s), which mirrors the requirements in VAWA; the final
regulations should provide an initial warning that neither party is to
aggravate the problem in any manner; the final regulations should
include language permitting the issuance of ``no contact'' orders as a
supportive measure; the final regulations should prohibit parties from
engaging in retaliatory conduct in violation of institutional policies.
Discussion: The Department appreciates commenters' support for
Sec. 106.45(b)(5)(iii). The Department acknowledges the concerns
expressed by other commenters concerned about confidentiality and
retaliation problems that may arise from application of this provision.
This provision contains two related requirements: That a recipient not
restrict a party's ability to (i) discuss the allegations under
investigation or (ii) gather and present evidence. The two requirements
overlap somewhat but serve distinct purposes.
As to this provision's requirement that a recipient not restrict a
party's ability to discuss the allegations under investigation, the
Department believes that a recipient should not, under the guise of
confidentiality concerns, impose prior restraints on students' and
employees' ability to discuss (i.e., speak or write about) the
allegations under investigation, for example with a parent, friend, or
other source of emotional support, or with an advocacy organization.
Many commenters have observed that the grievance process is stressful,
difficult to navigate, and distressing for both parties, many of whom
in the postsecondary institution context are young adults ``on their
own'' for the first time, and many of whom in the elementary and
secondary school context are minors. The Department does not believe
recipients should render parties feeling isolated or alone through the
grievance process by restricting parties' ability to seek advice and
support outside the recipient's provision of supportive measures. Nor
should a party face prior restraint on the party's ability to discuss
the allegations under investigation where the party intends to, for
example, criticize the recipient's handling of the investigation or
approach to Title IX generally. The Department notes that student
activism, and employee publication of articles and essays, has spurred
many recipients to change or improve Title IX procedures, and often
such activism and publications have included discussion by parties to a
Title IX grievance process of perceived flaws in the recipient's Title
IX policies and procedures. The Department further notes that Sec.
106.45(b)(5)(iii) is not unlimited in scope; by its terms, this
provision stops a recipient from restricting parties' ability to
discuss ``the allegations under investigation.'' This provision does
not, therefore, apply to discussion of information that does not
consist of ``the allegations under investigation'' (for example,
evidence related to the allegations that has been collected and
exchanged between the parties and their
[[Page 30296]]
advisors during the investigation under Sec. 106.45(b)(5)(vi), or the
investigative report summarizing relevant evidence sent to the parties
and their advisors under Sec. 106.45(b)(5)(vii)).
As to the requirement in Sec. 106.45(b)(5)(iii) that recipients
must not restrict parties' ability ``to gather and present evidence,''
the purpose of this provision is to ensure that parties have equal
opportunity to participate in serving their own respective interests in
affecting the outcome of the case. This provision helps ensure that
other procedural rights under Sec. 106.45 are meaningful to the
parties; for example, while the parties have equal opportunity to
inspect and review evidence gathered by the recipient under Sec.
106.45(b)(5)(vi), this provision helps make that right meaningful by
ensuring that no party's ability to gather evidence (e.g., by
contacting a potential witness, or taking photographs of the location
where the incident occurred) is hampered by the recipient.
Finally, the two requirements of this provision sometimes overlap,
such as where a party's ability to ``discuss the allegations under
investigation'' is necessary precisely so that the party can ``gather
and present evidence,'' for example to seek advice from an advocacy
organization or explain to campus security the need to access a
building to inspect the location of an alleged incident.
The Department appreciates the opportunity to clarify that this
provision in no way immunizes a party from abusing the right to
``discuss the allegations under investigation'' by, for example,
discussing those allegations in a manner that exposes the party to
liability for defamation or related privacy torts, or in a manner that
constitutes unlawful retaliation. In response to many commenters
concerned that the proposed rules did not address retaliation, the
final regulations add Sec. 106.71 prohibiting retaliation and stating
in relevant part (emphasis added): ``No recipient or other person may
intimidate, threaten, coerce, or discriminate against any individual
for the purpose of interfering with any right or privilege secured by
title IX or this part[.]'' \1161\ The Department thus believes that
Sec. 106.45(b)(5)(iii)--permitting the parties to discuss the
allegations under investigation, and to gather and present evidence--
furthers the Department's interest in promoting a fair investigation
that gives both parties meaningful opportunity to participate in
advancing the party's own interests in case, while abuses of a party's
ability to discuss the allegations can be addressed through tort law
and retaliation prohibitions.
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\1161\ As discussed in the ``Retaliation'' section of this
preamble, Sec. 106.71 takes care to protect the constitutional free
speech rights of students and employees at public institutions that
must protect constitutional rights. Nonetheless, abuse of speech
unprotected by the First Amendment, when such speech amounts to
intimidation, threats, or coercion for the purpose of chilling
exercise of a person's Title IX rights, is prohibited retaliation.
---------------------------------------------------------------------------
The Department recognizes commenters' concerns that some discussion
about the allegations under investigation may fall short of retaliation
or tortious conduct, yet still cause harmful effects. For example,
discussion and gossip about the allegations may negatively impact a
party's social relationships. For the above reasons, the Department
believes that the benefits of Sec. 106.45(b)(5)(iii), for both
parties, outweigh the harm that could result from this provision. This
provision, by its terms, applies only to discussion of ``the
allegations under investigation,'' which means that where a complainant
reports sexual harassment but no formal complaint is filed, Sec.
106.45(b)(5)(iii) does not apply, leaving recipients discretion to
impose non-disclosure or confidentiality requirements on complainants
and respondents. Thus, reporting should not be chilled by this
provision because it does not apply to a report of sexual harassment
but only where a formal complaint is filed. One reason why the final
regulations take great care to preserve a complainant's autonomy to
file or not file a formal complaint (yet still receive supportive
measures either way) is because participating in a grievance process is
a weighty and serious matter, and each complainant should have control
over whether or not to undertake that process.\1162\ Once allegations
are made in a formal complaint, a fair grievance process requires that
both parties have every opportunity to fully, meaningfully participate
by locating evidence that furthers the party's interests and by
confiding in others to receive emotional support and for other
personally expressive purposes. The Department believes that this
provision, by its plain language, limits the scope of what can be
discussed, and laws prohibiting tortious speech and invasion of
privacy, and retaliation prohibitions, protect all parties against
abusive ``discussion'' otherwise permitted by this provision.
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\1162\ As discussed elsewhere in the preamble, including in the
``Formal Complaint'' subsection of the ``Section 106.30
Definitions'' section, the decision to initiate a grievance process
against the wishes of a complainant is one that must be undertaken
only when the Title IX Coordinator determines that signing a formal
complaint initiating a grievance process against a respondent is not
clearly unreasonable in light of the known circumstances.
---------------------------------------------------------------------------
The Department has considered carefully the concerns of several
commenters who believe this provision will lead to witness tampering or
intimidation, or otherwise interfere with a proper investigation. As to
witness intimidation, such conduct is prohibited under Sec. 106.71(a).
As to whether a party approaching or speaking to a witness could
constitute ``tampering,'' the Department believes that generally, a
party's communication with a witness or potential witness must be
considered part of a party's right to meaningfully participate in
furthering the party's interests in the case, and not an
``interference'' with the investigation. However, where a party's
conduct toward a witness might constitute ``tampering'' (for instance,
by attempting to alter or prevent a witness's testimony), such conduct
also is prohibited under Sec. 106.71(a). Some commenters were
particularly concerned that a party's communication with a witness
could result in the witness telling a different story to the party than
the witness is willing to tell an investigator; any such
inconsistencies or discrepancies would be taken into account by the
parties, investigator, and decision-maker but do not necessarily
constitute ``interference'' with the investigation by the party who
spoke with the witness. Furthermore, in some situations, a party may
not know the identity of witnesses until discussing the situation with
others (for example, asking a roommate who was at the party at which
the alleged incident occurred so as to discover whether any party
attendees witnessed relevant events); thus, the Department declines to
require that only recipients (or their investigators) may communicate
with witnesses or potential witnesses.
With respect to commenters concerned about applying this provision
in elementary and secondary schools, the Department disagrees that this
provision forbids a school principal from warning students not to speak
``maliciously'' since malicious discussion intended to interfere with
the other party's Title IX rights would constitute prohibited
retaliation.
For the reasons discussed above, the Department declines to narrow
or modify this provision per commenters' various suggestions. The
Department believes that parties, not recipients, should determine who
has a ``need to know'' about the allegations in order to provide
advice, support, or assistance to a party during a grievance process;
for similar reasons, recipients should not
[[Page 30297]]
determine what information to label ``confidential.'' Limiting a
party's discussions to ``neutral'' communications, or to communications
solely for the purpose of gathering evidence, would deprive the parties
of the benefits discussed above, such as seeking emotional support and
using the party's experience to express viewpoints on the larger issues
of sexual violence or Title IX policies and procedures; for the same
reasons the Department declines to narrow this provision to allow
discussion only with advisors or to require a warning to parties that
neither party should ``aggravate the problem.'' This provision does not
affect a recipient's discretion to restrict parties from contact or
communication with each other through, e.g., mutual no-contact orders
that meet the definition of supportive measures in Sec. 106.30. Where
``disparaging communications'' are unprotected under the Constitution
and violate tort laws or constitute retaliation, such communications
may be prohibited without violating this provision. This provision
applies to discussion of ``the allegations under investigation'' and
not to the evidence subject to the parties' inspection and review under
Sec. 106.45(b)(5)(vi).
Changes: The final regulations add Sec. 106.71 prohibiting
retaliation.
Section 106.45(b)(5)(iv) Advisors of Choice
Supporting Presence and Participation of Advisors
Comments: Some commenters supported allowing parties to have an
advisor present because of the severe nature of Title IX charges and
the potentially life-altering consequences. Commenters argued the
proposed regulations would promote due process and give students more
control over the proceedings. Other commenters supported allowing
students to have an advisor because it will reduce the risk of false
findings by allowing students to avail themselves of an advisor's
expertise. Some commenters supported this provision believing the
proposed regulations will reconcile Title IX proceedings with
protections that are offered in analogous proceedings, such as criminal
trials.
Discussion: The Department appreciates the general support from
commenters regarding Sec. 106.45(b)(5)(iv), which requires recipients
to provide all parties with the same opportunities to have advisors
present in Title IX proceedings and to also have advisors participate
in Title IX proceedings, subject to equal restrictions on advisors'
participation, in recipients' discretion. We share commenters' beliefs
that this provision will make the grievance process substantially more
thorough and fairer and that the resulting outcomes will be more
reliable. The Department recognizes the high stakes for all parties
involved in sexual misconduct proceedings under Title IX, and that the
outcomes of these cases can carry potentially life-altering
consequences, and thus believes every party should have the right to
seek advice and assistance from an advisor of the party's choice.
However, providing parties the right to select an advisor of choice
does not align with the constitutional right of criminal defendants to
be provided with effective representation. The more rigorous
constitutional protection provided to criminal defendants is not
necessary or appropriate in the context of administrative proceedings
held by an educational institution rather than by a criminal court. To
better clarify that parties' right to an advisor of choice differs from
the right to legal representation in a criminal proceeding, the final
regulations revise Sec. 106.45(b)(5)(iv) to specify that the advisor
of choice may be, but is not required to be, an attorney.
Changes: To clarify that a recipient may not limit the choice or
presence of an advisor we have added ``or presence'' to Sec.
106.45(b)(5)(iv), and we have added language in this section to clarify
that a party's advisor may be, but is not required to be, an attorney.
Fairness Considerations
Comments: Some commenters argued that Sec. 106.45(b)(5)(iv) is not
survivor-centered and will tip the scales in favor of wealthy students
who can afford counsel.
Discussion: The Department believes that by permitting both parties
to receive guidance from an advisor of their choice throughout the
Title IX proceedings, the process will be substantially more thorough
and fairer and the resulting outcomes will be more reliable. In
response to commenters' concerns, the final regulations revise Sec.
106.45(b)(5)(iv) to specify that a party's chosen advisor may be, but
is not required to 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 to assist the
party without fee or charge. The Department wishes to emphasize that
the status of any party's advisor (i.e., whether a party's advisor is
an attorney or not), the financial resources of any party, and the
potential of any party to yield financial benefits to a recipient, must
not affect the recipient's compliance with Sec. 106.45. The Department
believes that the clear procedural rights provided to both parties
during the grievance process give both parties opportunity to advance
each party's respective interests in the case, regardless of financial
ability. Further, while the final regulations do not require the
recipient to pay for parties' advisors, nothing the in the final
regulations precludes a recipient from choosing to do so.
Changes: We have added language in Sec. 106.45(b)(5)(iv) to
clarify that a party's advisor may be, but is not required to be, an
attorney.
Conflicts of Interest, Confidentiality, and Union Issues
Comments: Commenters argued that student-picked advisors will have
a conflict of interest and will raise confidentiality issues. Other
commenters expressed concern that Sec. 106.45(b)(5)(iv) may conflict
with a union's duty of providing fair representation in the grievance
process. One commenter stated that Federal labor law and many State
labor laws already provide that an employee subject to investigatory
interviews may have a union representative present for a meeting that
might lead to discipline.
Discussion: The Department acknowledges the concerns raised by
commenters regarding potential conflicts of interest and
confidentiality issues arising from permitting the presence or
participation of advisors of a party's choice in Title IX proceedings,
and potential conflict with labor union duties in grievance processes.
With respect to potential conflicts of interest, we believe that
parties are in the best position to decide which individuals should
serve as their advisors. Advisors, for example, may be friends, family
members, attorneys, or other individuals with whom the party has a
trusted relationship. The Department believes it would be inappropriate
for it to second guess this important decision.
With respect to confidentiality, the Department notes that
commenters who raised this issue did not explain exactly how parties'
confidentiality interests would be compromised by permitting them to
have an advisor of choice to attend or participate in Title IX
proceedings. As explained more fully in the ``Section 106.6(e) FERPA''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble, we note that Sec. 106.6(e) of the final
regulations makes it clear that the final regulations should be
interpreted to be consistent with a recipient's obligations under
FERPA. Recipients may require advisors to use
[[Page 30298]]
the evidence received for inspection and review under Sec.
106.45(b)(5)(vi) as well as the investigative report under Sec.
106.45(b)(5)(vii) only for purposes of the grievance process under
Sec. 106.45 and require them not to further disseminate or disclose
these materials. Additionally, these final regulations do not prohibit
a recipient from using a non-disclosure agreement that complies with
these final regulations and other applicable laws.
Lastly, it is not the intent of the Department to undermine the
important role that union advisors may play in grievance proceedings.
However, we wish to clarify that in the event of an actual conflict
between a union contract or practice and the final regulations, then
the final regulations would have preemptive effect.\1163\ We note that
the final regulations do not preclude a union lawyer from serving as an
advisor to a party in a proceeding.
---------------------------------------------------------------------------
\1163\ For further discussion see the ``Section 106.6(h)
Preemptive Effect'' subsection of the ``Clarifying Amendments to
Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------
Changes: None.
Modification Requests
Comments: Some commenters argued that Sec. 106.45(b)(5)(iv)
conflicts with past guidance from the Department. Other commenters
argued that advisors should not be allowed so students can learn to
speak for themselves. Some commenters opposed this provision because
they believe there should be no limits on attorney participation in
grievance procedures. Some commenters argued that recipients should
provide each party with an advisor to assist them throughout the
grievance process. Some commenters expressed concern that the presence
of advisors could complicate the proceedings, for instance, if the
advisor was needed to also serve as a witness, if the advisor did not
wish to take part in cross-examinations, if taking part in cross-
examinations would adversely affect a teacher-student relationship, or
if the advisor had limited availability to attend hearings and
meetings. Other commenters suggested there should be no limits placed
on who can serve as an advisor and that advisors should be allowed to
be fully active participants, especially on behalf of students with
disabilities or international students who may need active
representation by counsel. Other commenters suggested that advisors
should be required to be attorneys in order to avoid unauthorized
practice of law.
Discussion: With respect to allowing advisors of choice, who may be
attorneys, and the participation of such advisors in grievance
procedures, these final regulations take a similar approach to
Department guidance, with two significant differences. The withdrawn
2011 Dear Colleague Letter stated that recipients could ``choose'' to
allow students to be represented by lawyers during grievance procedures
and directed that any rules about a lawyer's appearance or
participation must apply equally to both parties.\1164\ These final
regulations better align the Department's approach to advisors of
choice for Title IX purposes with the Clery Act as amended by
VAWA,\1165\ clarifying that in a Title IX grievance process recipients
must allow parties to select advisors of the parties' choice, who may
be, but need not be, attorneys, while continuing to insist that any
restrictions on the active participation of advisors during the
grievance process must apply equally to both parties. Unlike Department
guidance or Clery Act regulations, these final regulations implementing
Title IX specify that when live hearings are held by postsecondary
institutions, the recipient must permit a party's advisor to conduct
cross-examination on behalf of a party.\1166\ The Department believes
that requiring recipients to allow both parties to have an advisor of
their own choosing accompany them throughout the Title IX grievance
process, and also to participate within limits set by recipients, is
important to ensure fairness for all parties. For discussion of the
reasons why cross-examination at a live hearing must be conducted by a
party's advisor rather than by parties personally, see the ``Hearings''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble. As discussed above, the
Department believes that Sec. 106.45(b)(5)(iv) will help to make the
grievance process substantially more thorough and fairer, and the
resulting outcomes more reliable. While nothing in the final
regulations discourages parties from speaking for themselves during the
proceedings, the Department believes it is important that each party
have the right to receive advice and assistance navigating the
grievance process. As such, we decline to forbid parties from obtaining
advisors of choice. Section 106.45(b)(5)(iv) (allowing recipients to
place restrictions on active participation by party advisors) and the
revised introductory sentence to Sec. 106.45(b) (requiring any rules a
recipient adopts for its grievance process other than rules required
under Sec. 106.45 to apply equally to both parties) would, for
example, permit a recipient to require parties personally to answer
questions posed by an investigator during an interview, or personally
to make any opening or closing statements the recipient allows at a
live hearing, so long as such rules apply equally to both parties. We
do not believe that specifying what restrictions on advisor
participation may be appropriate is necessary, and we decline to remove
the discretion of a recipient to restrict an advisor's participation so
as not to unnecessarily limit a recipient's flexibility to conduct a
grievance process that both complies with Sec. 106.45 and, in the
recipient's judgment, best serves the needs and interests of the
recipient and its educational community. The Department therefore
disagrees that the final regulations should prohibit recipients from
imposing any restrictions on the participation of advisors, including
attorneys, in the Title IX grievance process.\1167\ These final
regulations ensure that a party's advisor of choice must be included in
the party's receipt of, for instance, evidence subject to party
inspection and review,\1168\ and the investigative report,\1169\ so
that a party's advisor of choice is fully informed throughout the
investigation in order to advise and assist the party.
---------------------------------------------------------------------------
\1164\ E.g., 2011 Dear Colleague Letter at 11 (``While OCR does
not require schools to permit parties to have lawyers at any stage
of the proceedings, if a school chooses to allow the parties to have
their lawyers participate in the proceedings, it must do so equally
for both parties. Additionally, any school-imposed restrictions on
the ability of lawyers to speak or otherwise participate in the
proceedings should apply equally.'').
\1165\ For discussion of the Clery Act and these final
regulations, see the ``Clery Act'' subsection of the
``Miscellaneous'' section of this preamble.
\1166\ Section 106.45(b)(6)(i).
\1167\ As discussed in the ``Section 106.45(b)(6)(i)
Postsecondary Institution Recipients Must Provide Live Hearing with
Cross-Examination'' subsection of the ``Hearings'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section
of this preamble, the final regulations make one exception to the
provision in Sec. 106.45(b)(5)(iv) that recipients have discretion
to restrict the extent to which party advisors may actively
participate in the grievance process: Where a postsecondary
institution must hold a live hearing with cross-examination, such
cross-examination must be conducted by party advisors.
\1168\ Section 106.45(b)(5)(vi) (evidence subject to inspection
and review must be sent electronically or in hard copy to each party
and the party's advisor of choice).
\1169\ Section 106.45(b)(5)(vii) (a copy of the investigative
report must be sent electronically or in hard copy to each party and
the party's advisor of choice).
---------------------------------------------------------------------------
The Department understands the concerns of commenters who raised
the question of whether acting as a party's advisor of choice could
constitute the practice of law such that parties will feel obligated to
hire licensed attorneys
[[Page 30299]]
as advisors of choice, to avoid placing non-attorney advisors (such as
a professor, friend, or advocacy organization volunteer) in the
untenable position of potentially violating State laws that prohibit
the unauthorized practice of law.\1170\ While the issues raised by
allegations of sexual misconduct may make it preferable or advisable
for one or both parties to receive legal advice or obtain legal
representation, the Department recognizes school disciplinary
proceedings, including the grievance process required under these final
regulations, as an administrative setting that does not require either
party to be represented by an attorney. The Department believes that
the Sec. 106.45 grievance process sets forth clear, transparent
procedural rules that enable parties and non-lawyer party advisors
effectively to navigate the grievance process. Because the grievance
process occurs in an educational setting and does not require court
appearances or detailed legal knowledge, the Department believes that
assisting a party to a grievance process is best viewed not as
practicing law, but rather as providing advocacy services to a
complainant or respondent. The Department concludes that with respect
to Title IX proceedings the line between assisting a party, and
providing legal representation to the party, is a line that has been
and will continue to be, an issue taken into consideration by students,
recipients, and advocates pursuant to the variety of State unauthorized
practice of law statutes.
---------------------------------------------------------------------------
\1170\ E.g., Michelle Cotton, Experiment, Interrupted:
Unauthorized Practice of Law Versus Access to Justice, 5 DePaul J.
for Social Justice 179, 188-89 (2012) (``Most States continue to
have broad definitions of the practice of law and broad concepts of
[unauthorized practice of law] UPL that prevent or inhibit the
involvement of nonlawyers in providing assistance to unrepresented
persons.''); Derek A. Denckla, Nonlawyers and the Unauthorized
Practice of Law: An Overview of the Legal and Ethical Parameters, 67
Fordham L. Rev. 2581, 2585-88 (1999) (noting that in every state,
nonlawyers are generally prohibited from practicing law, that the
definition of unauthorized practice of law (UPL) varies widely from
jurisdiction to jurisdiction, and that exceptions to what
constitutes UPL often include appearing in administrative
proceedings).
---------------------------------------------------------------------------
The Department notes that some commenters argued that the grievance
process is complex and frequently intersects with legal proceedings
(for example, when a complainant sues the respondent for civil assault
or battery, or files a police report that results in a criminal
proceeding against the respondent), and that legal representation would
benefit both parties to a Title IX proceeding.\1171\ The Department
leaves recipients flexibility and discretion to determine whether a
recipient wishes to provide legal representation to parties in a
grievance process, but the final regulations do not restrict the right
of each party to select an advisor with whom the party feels most
comfortable and believes will best assist the party, and thus clarifies
in this provision that the party's advisor of choice may be, but is not
required to be, an attorney.
---------------------------------------------------------------------------
\1171\ E.g., Merle H. Weiner, Legal Counsel for Survivors of
Campus Sexual Violence, 29 Yale J. of L. & Feminism 123 (2017)
(arguing that campuses should provide student survivors with legal
representation, and noting that providing accused students with
legal representation is also beneficial).
---------------------------------------------------------------------------
The Department acknowledges commenters' concerns that advisors may
also serve as witnesses in Title IX proceedings, or may not wish to
conduct cross-examination for a party whom the advisor would otherwise
be willing to advise, or may be unavailable to attend all hearings and
meetings. Notwithstanding these potential complications that could
arise in particular cases, the Department believes it would be
inappropriate to restrict the parties' selection of advisors by
requiring advisors to be chosen by the recipient, or by precluding a
party from selecting an advisor who may also be a witness. The
Department notes that the Sec. 106.45(b)(1)(iii) prohibition of Title
IX personnel having conflicts of interest or bias does not apply to
party advisors (including advisors provided to a party by a
postsecondary institution as required under Sec. 106.45(b)(6)(i)), and
thus, the existence of a possible conflict of interest where an advisor
is assisting one party and also expected to give a statement as a
witness does not violate the final regulations. Rather, the perceived
``conflict of interest'' created under that situation would be taken
into account by the decision-maker in weighing the credibility and
persuasiveness of the advisor-witness's testimony. We further note that
live hearings with cross-examination conducted by party advisors is
required only for postsecondary institutions, and the requirement for a
party's advisor to conduct cross-examination on a party's behalf need
not be more extensive than simply relaying the party's desired
questions to be asked of other parties and witnesses.\1172\
---------------------------------------------------------------------------
\1172\ For further discussion see the ``Hearings'' subsection of
the ``Section 106.45 Recipient's Response to Formal Complaints''
section of this preamble.
---------------------------------------------------------------------------
Changes: We have added language in Sec. 106.45(b)(5)(iv) to
clarify that a party's advisor may be, but is not required to be, an
attorney.
Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings, and
Interviews
Comments: Several commenters supported Sec. 106.45(b)(5)(v)
because it will promote fairness, due process, and increase the
likelihood of reaching an accurate result. One commenter shared a
personal story of a family member with a disability who was not allowed
to prepare a defense after being accused of sexual harassment. Other
commenters supported this provision believing it offers the same
protections that would be offered in a criminal trial. Other commenters
supported this provision believing it will limit the abuse of power
that can be wielded under Title IX investigations.
Discussion: The Department agrees with commenters who supported
this provision on the grounds that it will promote fairness, provides
both parties with due process protections, and increase the likelihood
of reaching an accurate result. The Department believes that written
notice of investigative interviews, meetings, and hearings, with time
to prepare, permits both parties meaningfully to advance their
respective interests during the grievance process, which helps ensure
that relevant evidence is gathered and considered in investigating and
adjudicating allegations of sexual harassment.
Changes: None.
Comments: Several commenters argued that the proposed regulations,
including Sec. 106.45(b)(5)(v), would be burdensome by requiring
recipients to provide written notice, placing them under time
constraints, adding administrative layers, and that these burdens would
be particularly difficult for elementary and secondary schools.
Discussion: The Department acknowledges the concern of commenters
that Sec. 106.45(b)(5)(v) will place a burden on recipients, including
elementary and secondary schools, but believes the burden associated
with providing this notice is outweighed by the due process protections
such notice provides. Because the stakes are high for both parties in a
grievance process, both parties should receive notice with sufficient
time to prepare before participating in interviews, meetings, or
hearings associated with the grievance process, and written notice is
better calculated to effectively ensure that parties are apprised of
the date, time, and nature of interviews, meetings, and hearings than
relying solely on notice in the form of oral communications. For
example, if a party receives written notice of the date of an
interview, and needs to request rescheduling of the
[[Page 30300]]
date or time of the interview due to a conflict with the party's class
schedule, the recipient and parties benefit from having had the
originally-scheduled notice confirmed in writing so that any
rescheduled date or time is measured accurately against the original
schedule. We note that nothing in these final regulations precludes a
recipient from also conveying notice via in-person, telephonic, or
other means of conveying the notice, in addition to complying with
Sec. 106.45(b)(5)(v) by sending written notice.
Changes: We have made non-substantive revisions to Sec.
106.45(b)(5)(v), such as changing ``the'' to ``a'' in the opening
clause ``Provide to a party'' and adding a comma after ``invited or
expected,'' for clarity.
Comments: Some commenters argued that the procedures required by
the proposed regulations are not suited to the campus environment where
proceedings should not be adversarial, where notice of hearings might
allow accused students time to destroy evidence and prepare alibis, and
where it will contribute to underreporting as complainants will feel a
loss of control or bullied because the proposed regulations are not
informed by a victim-centered perspective.
Discussion: The Department disagrees that Sec. 106.45(b)(5)(v), or
the final regulations overall, increase the adversarial nature of
sexual misconduct proceedings or incentivize any party to fabricate or
destroy evidence. Allegations of sexual harassment often present an
inherently adversarial situation, where parties have different
recollections and perspectives about the incident at issue. The final
regulations do not increase the adversarial nature of such a situation,
but the Sec. 106.45 grievance process (including this provision
requiring written notice to both parties with time to prepare to
participate in interviews and hearings) helps ensure that the
adversarial nature of sexual harassment allegations are investigated
and adjudicated impartially by the recipient with meaningful
participation by the parties whose interests are adverse to each
other.\1173\ Accordingly, the final regulations require schools to
investigate and adjudicate formal complaints of sexual harassment, and
to give complainants and respondents a meaningful opportunity to
participate in the investigation that increases the likelihood that the
recipient will reach an accurate, reliable determination regarding the
respondent's responsibility.
---------------------------------------------------------------------------
\1173\ E.g., Pennsylvania v. Finley, 481 U.S. 551, 568 (1987)
(``The very premise of our adversarial system . . . is that partisan
advocacy on both sides of a case will best promote the ultimate
objective that the guilty be convicted and the innocent go free.'')
(internal quotation marks and citation omitted); see also Tolan v.
Cotton, 572 U.S. 650, 660 (2014) (``The witnesses on both sides come
to this case with their own perceptions, recollections, and even
potential biases. It is in part for that reason that genuine
disputes are generally resolved by juries in our adversarial
system.'').
---------------------------------------------------------------------------
The Department does not agree that providing the parties with
advance notice of investigative interviews, meetings, and hearings
increases the likelihood that any party will concoct alibis or destroy
evidence. The final regulations contain provisions that help ensure
that false statements (e.g., making up an alibi) or destruction of
evidence will be revealed during the investigation and taken into
account in reaching a determination. For example, Sec. 106.45(b)(2)
requires the initial written notice to the parties to include a
statement about whether the recipient's code of conduct prohibits false
statements, and Sec. 106.45(b)(5)(vi) gives both parties equal
opportunity to inspect and review all evidence gathered by the
recipient that is directly related to the allegations, such that if
relevant evidence seems to be missing, a party can point that out to
the investigator, and if it turns out that relevant evidence was
destroyed by a party, the decision-maker can take that into account in
assessing the credibility of parties, and the weight of evidence in the
case.
The Department disagrees that Sec. 106.45(b)(5)(v) will contribute
to underreporting because complainants will feel a loss of control or
bullied, or feel chilled from reporting, or that this provision is not
informed by a victim-centered perspective. The Department believes this
provision provides a fundamental and essential due process protection
that equally benefits complainants and respondents by giving both
parties advance notice of interviews, meetings, and hearings so that
each party can meaningfully participate and assert their respective
positions and viewpoints through the grievance process.\1174\ This is
an important part of ensuring that the grievance process reaches
accurate determinations, which in turn ensures that schools, colleges,
and universities know when and how to provide remedies to victims of
sex discrimination in the form of sexual harassment.
---------------------------------------------------------------------------
\1174\ Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (``The
fundamental requirement of due process is the opportunity to be
heard `at a meaningful time and in a meaningful manner.' '')
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters suggested that recipients should only be
required to give respondents notice of charges, not necessarily of
interviews, in order to reflect the standards set by VAWA. Some
commenters suggested that the final regulations should require an
advisor be copied on all correspondence between the institutions and
the parties.
Discussion: The Department disagrees with the commenters who
suggested that recipients should only be required to give respondents
notice of charges, not necessarily of interviews, in order to reflect
the standards set by Section 304 of VAWA. The commenter offered no
rationale for why the approach under VAWA is superior to the Sec.
106.45(b)(5)(v) requirements in this regard, and the Department
believes that parties are entitled to notice of interviews, meetings,
and hearings where the party's participation is expected or invited;
otherwise, a party may miss critical opportunities to advance the
party's interests during the grievance process. To clarify that this
provision intends for notice to be given only to the party whose
participation is invited or expected, we have made non-substantive
revisions to the language of this provision to better convey that
intent. Because this provision is consistent with the VAWA provision
cited by commenters, even though this provision requires more notice
than the VAWA provision, the Department sees no conflict raised for
recipients who must comply with both VAWA and Title IX.
We note that the final regulations do require that copies of the
evidence subject to the parties' inspection and review, and a copy of
the investigative report, must be sent (electronically or in hard copy)
to the parties and to the parties' advisors, if any. The Department
appreciates commenters' request that advisors be copied on all
correspondence between recipients and the parties, but declines to
impose such a rule in order to preserve a recipient's discretion under
Sec. 106.45(b)(5)(iv) to limit the participation of party advisors,
and to preserve a party's right to decide whether or not, for what
purposes, and at what times, the party wishes for an advisor of choice
to participate with the party. Nothing in the final regulations
precludes a recipient from adopting a practice of copying party
advisors on all notices sent under Sec. 106.45(b)(5)(v), so long as
the recipient complies with the revised introductory sentence of Sec.
106.45(b) by ensuring that such a practice applies equally with respect
to both parties.
[[Page 30301]]
Changes: We have revised the language in Sec. 106.45(b)(5)(v) to
more clearly convey that notice must be sent to a party when that
party's participation is invited or expected with respect to any
meeting, interview, or hearing during the grievance process, by
changing ``the'' to ``a'' in the clause ``Provide to a party'' in this
provision.
Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly
Related to the Allegations, and Directed Question 7
Comments: Many commenters expressed support for Sec.
106.45(b)(5)(vi) and asserted that the proposed regulations seek the
equal treatment of complainants and respondents. One commenter asserted
that the proposed regulations would remedy sex-biased investigations
and included citations to circuit court cases involving male students
challenging the Title IX processes at institutions that suspended or
expelled the male students for sexual misconduct. A different commenter
stated that the proposed regulations would restore fairness and provide
full disclosure to both parties so that they can adequately prepare
defenses and present additional facts and witnesses. Another commenter
concluded that the proposed regulations would ensure justice for
complainants and protection for those falsely accused.
A number of commenters shared stories of their personal experiences
with recipients withholding information from parties in a Title IX
proceeding.
One commenter concluded that both parties having access to all of
the evidence will ensure a fair process for both parties. Many
commenters remarked that a Title IX investigator should not have
unilateral authority to deem certain evidence ``irrelevant.'' Another
commenter stated that schools should not hinder evidence reviews with
short or limited time windows. One commenter stated that all evidence
collected, including evidence collected by law enforcement, should be
made available to the respondent.
Some commenters concluded that the electronic view-only format is
unreasonable. Other commenters stated that all of the evidence should
be provided to the parties to download and review on their own. The
commenters remarked that this was necessary, especially in complex
cases where review of the evidence would take a significant period of
time. Some of these commenters also argued that any effort on the part
of a recipient to limit a party's access to the evidence should be
viewed as a bad faith effort to negatively impact the proceeding.
While generally supportive of the provision, one commenter argued
that the final regulations should require that the investigator
incorporate the parties' responses into the final investigative report.
Another generally supportive commenter proposed the inclusion of a
party's right to call an external investigator. A different commenter
supported the adoption of a special master to oversee the adjudicative
process.
Some commenters agreed with the ten-day review and comment
requirement, determining that it is an appropriate period for allowing
the parties to read and provide written responses. Another commenter
stated that the exchange of information between the parties will result
in expedited hearings.
One supporter of the provision requested that the Department
include a provision that would inform the parties of the consequences
of submitting false information to the investigator.
A number of commenters opposed Sec. 106.45(b)(5)(vi). One
commenter concluded that the proposed regulations, including this
provision, were antithetical to the purpose of Title IX. Another
commenter called this provision a blunt solution to a nuanced problem
that attempts to solve the ``canard'' of false allegations. The
commenter added that the Department fails to see the issue through a
victim-centered lens, pointing out that the term ``trauma'' is used
only once in the NPRM. The same commenter stated that this provision is
not informed by best practices for working with trauma survivors.
One commenter argued that the proposed regulations would lead to
retaliation and witness tampering. Another commenter stated that Sec.
106.45(b)(5)(vi) would ``revictimize'' complainants. Many commenters
stated that this provision will hamstring and compromise
investigations, would likely chill the reporting process, is part of
the administration's indifference to sexual violence, and will have
negative effects on safety and fairness. One commenter concluded that
the proposed rules would allow institutions to turn a ``blind eye'' to
sexual violence on campus.
One commenter wrote that this provision ``fails to adequately
acknowledge the seriousness and complexity of sexual misconduct on
college campuses'' and called for a simpler, fairer, and more
responsive approach. A different commenter argued that Sec.
106.45(b)(5)(vi) would deter reporting, create difficulties in
maintaining student privacy, and make Title IX cases more time-
consuming and expensive. According to this commenter, this provision
did not account for the potential for reputational damage and that it
eliminates key aspects of the discretion that enables institutions to
act in the ``best interests of all parties.'' Another commenter
concluded that this provision is ``unhelpful and hurtful'' to victims,
which, the commenter opined, may be the purpose of the provision.
One commenter stated that the provision allows evidence of past
sexual conduct to be presented in an investigation and that such
history would be raised to shame complainants.
Another commenter concluded that this provision would result in the
respondent being able to coerce new witnesses because the ``regulations
allow that.'' The same commenter also stated that the Department's
focus on due process is misplaced because there is no due process
problem until corrective action is proposed. A different commenter
concluded that the provision is a barrier to effective investigation
and resolution of Title IX grievances, calling it an ``unacceptable''
and ``untimely'' step. The same commenter proposed eliminating the ten-
day period for review of the collected evidence or, conversely, the
inclusion of a requirement that each party must have a reasonable
opportunity to review the evidence and provide feedback while the
investigation is ongoing, but without a set timeline.
One commenter stated that fair notice and an opportunity to respond
does not require discovery of all evidence ``directly related'' to the
allegations, where the evidence will not be relied upon in making a
responsibility determination. Similarly, the commenter argued that
requiring recipients to turn over all evidence directly related to the
allegations was overbroad and may result, ultimately, in less
information being shared by parties during the investigation. Another
commenter argued that no rational basis exists for requiring the
disclosure of evidence not relied upon in reaching a determination. The
commenter added that the provision is extremely confusing and benefits
no one.
Many commenters questioned why the Department would allow parties
to review evidence upon which the decision-maker does not intend to
rely upon in adjudicating the claim. These commenters agreed that only
relevant information should be shared with the parties. One of these
commenters concluded that the provision ``further legalizes'' the
process.
[[Page 30302]]
Another commenter argued that, under current judicial precedent, no
formal right to discovery exists in a student disciplinary hearing.
One commenter argued in favor of the recipient only sharing
information with the parties, allowing them to determine whether the
information should be shared with their advisor.
Many commenters supported limitations on the information being
shared, including the exclusion or redaction of medical, psychological,
financial, sexual history, or other personal and private information
that has ``no bearing'' on the investigative report. One commenter
argued in favor of permitting schools to release information to the
parties based upon the individual circumstances of the case. The
commenter stated that this information would unnecessarily violate the
privacy of the disclosing parties and would prevent investigators from
gathering evidence out of fear that personal information would need to
be revealed. The commenter concluded that the result would be ``truly
harmful and possibly destructive to anyone who would engage in the
formal Title IX process.'' A different commenter concluded that there
is no purpose to sharing this information except to intrude into the
privacy of the parties. Commenters stated that the final regulations
would allow the improper, and potentially widespread, sharing of
confidential information and incentivize respondents to ``slip in''
prejudicial information to undermine the process.
A number of commenters concluded that students would be less likely
to report sexual harassment and sexual violence if investigations are
not conducted properly because there is no incentive for schools to
actually investigate. The commenter stated that, if enacted, the
proposed rules would harm many students who ``face these problems every
day.''
A number of commenters concluded that schools should not be
required to disclose irrelevant information and that institutions
should be allowed to place ``reasonable restrictions'' on records. Some
stated that an exception could be provided for a ``showing of
particularized relevance.'' One commenter proposed that schools should
not allow access to information they themselves cannot use. Calling the
provision ``utterly illogical,'' one commenter stated that sharing
irrelevant information would lead to extreme disparity of potential
outcomes.
Many commenters opposed the electronic sharing of evidence with the
parties. They argued that no system currently exists that limits the
user's ability to take pictures of the information on the screen. One
commenter was concerned that the proposed regulations do not include a
requirement that the viewing of the relevant evidence be supervised and
suggested the inclusion of such a provision. Some commenters argued
that sharing records electronically could exacerbate gender and
socioeconomic inequality and put some students at a disadvantage if
they do not have access to a private computer.
A number of commenters proposed sharing the evidence file in hard
copy format. Some of these commenters argued in favor of the supervised
viewing of evidence files, to protect the party's confidentiality and
to prevent parties from taking photographs of the evidence, while
others argued for investigators to use their discretion in redacting
certain information from the files before sharing with the parties.
Some commenters supported redactions for information deemed more
prejudicial than probative and for ``inflammatory'' evidence. Many of
these commenters expressed concern that the parties should not be
allowed to take physical possession of the evidence files. Commenters
who favored redactions, also argued that the final regulations
unreasonably limit the discretion of investigators. These commenters
argued that recipients should have the right to reasonably redact
confidential and private information, including the identity of the
complainant, if the recipient deems it necessary to do so. One
commenter, who favored the hard copy format, argued that students with
disabilities may have a difficult time reviewing the files if not
submitted in hard copy.
Some commenters remarked that electronic file sharing programs are
cost prohibitive, leading some to conclude that such cost would
prohibit institutions from paying for advisors for the parties.
Many commenters asserted that the provision could run afoul of
State laws, including laws regarding student privacy and the sharing of
confidential information, as well as potentially violate State rape
shield laws. Some commenters were also concerned about the effect of
open-records statutes as a means to publicize investigative files to
embarrass the opposing party.
A commenter stated that the proposed regulations fail to state that
the report should include all exculpatory and inculpatory evidence,
which could prevent an adequate record, jeopardize the parties' ability
to make a defense, might diminish the thoroughness with which facts are
considered, and unduly raise the risk of bias. Another commenter agreed
that crafting a full report before sharing it with the parties is
premature and could lead to errors, dissatisfaction, and the appearance
of bias.
A number of commenters pointed out that the proposed provision
would require recipients to change their current processes, causing a
disruption in how they handle Title IX cases on their campuses.
One commenter pointed out that student conduct processes at
institutions of higher education are not criminal processes and should
not be expected to mirror them. The commenter stated that colleges and
universities are not making criminal law decisions, but rather a policy
violation determination. In addition, the commenter believed that the
best policy would allow students to provide information, respond to
information, and ask questions, but in a manner that is appropriate to
limit creating an adversarial environment. Similarly, one commenter
concluded that the final regulations place a greater burden on
recipients than on a criminal prosecutor.
Some commenters opposed enacting a ten-day requirement for review
and responses. One commenter suggested that the ten-day timeline was an
``overregulation'' of institutions, suggesting instead that
institutions should set their own time frames, so long as they are
equitable. A number of commenters argued that institutions should be
able to determine appropriate timelines for their own processes. Many
commenters questioned whether the Department meant ten calendar days or
ten business days. Another commenter suggested shortening the review
period from ten to five days. A different commenter stated that the
Department should not mandate any time period as, in their opinion, a
uniform rule does not fit every circumstance at every school.
One commenter wrote that the final regulation's timeline is more
rigid than a similar proceeding in a courtroom, where courts often
expedite hearings when time is of the essence.
A commenter asked for clarification as to whether the proposed
regulations would require an extra ten days for re-inspection of the
supplemented investigative file. The same commenter also asked what, if
any, guidelines should be put in place regarding supplementing the
record at each stage of the adjudicative process.
One commenter proposed including a non-disclosure agreement as part
of the adjudicative process. Another commenter requested that the final
[[Page 30303]]
regulations should include a provision to punish institutions that have
committed ``wrongs'' against respondents in the past.
One commenter requested a regulatory provision that would provide
meaningful consequences for violations of confidentiality, including
punishment for recipients that do not implement reasonable privacy
safeguards or do not permit reasonable redaction policies.
One commenter requested clarification on how long institutions
would be required to retain records associated with a Title IX
proceeding. Another commenter requested that the Department provide an
electronic platform for the storing of data associated with Title IX
investigations.
A number of commenters raised issues with the implementation of the
final regulations in the K-12 context. Commenters stated that the
majority of changes in the proposed rules were not written with a clear
understanding of their application to the K-12 environment and that the
proposed rules may actually hamper a school district's ability to
maintain a safe school environment. For example, the commenter stated
that the extension of the timeline (for example, by imposing a ten-day
period for review of evidence) impairs a K-12 recipient's ability to
effectuate meaningful change to a student's behavior. In addition, the
commenter wrote that a ``battle of responses'' will foster more
hostility, not less, where there is a high likelihood that the parties
will remain within the same school district. The same commenter
suggested that the Department should look to provide, and detail,
restorative justice options that align with best practices for
effective responses to incidents of sexual harassment and sexual
violence. One commenter concluded that sharing the evidence file may be
appropriate at the postsecondary level, but is inappropriate at the K-
12 level. Another commenter called Sec. 106.45(b)(5)(vi) ``overkill''
in the K-12 context. A different commenter supported leaving the issue
of evidence review to local school officials. One commenter stated that
the ten days to review and respond was unnecessary and would needlessly
lengthen K-12 investigations.
Many commenters raised concerns over the burden caused by the
proposed regulations on small institutions. Those commenters pointed
out that sharing evidence with parties, waiting the required time
period, and creating the investigative report and the parties'
responses to it is onerous, has limited benefits as a truth-seeking
process, and is too burdensome for institutions with only one staff
member in charge of all of these responsibilities. Another commenter
similarly asserted that small institutions do not currently have staff
capacity to comply with Sec. 106.45(b)(5)(vi)-(vii). A different
commenter argued that continuous updates to the parties is ``completely
impractical'' and ``unduly burdensome'' on the investigator, especially
at small colleges.
Discussion: The Department appreciates commenters' support of Sec.
106.45(b)(5)(vi). We believe that this provision provides complainants
and respondents an equal opportunity to inspect and review evidence and
provides transparent disclosure of the universe of relevant and
potentially relevant evidence, with sufficient time for both parties to
meaningfully prepare arguments based on the evidence that further each
party's view of the case, or present additional relevant facts and
witnesses that the decision-maker should objectively evaluate before
reaching a determination regarding responsibility, including the right
to contest the relevance of evidence.
The Department is sensitive to commenters' concerns regarding the
parties sharing irrelevant information, as well as relevant information
that is relevant but also highly sensitive and personal, as part of the
investigative process. This concern, however, must be weighed against
the demands of due process and fundamental fairness, which require
procedures designed to promote accuracy through meaningful
participation of the parties. The Department believes that the right to
inspect all evidence directly related to the allegations is an
important procedural right for both parties, in order for a respondent
to present a defense and for a complainant to present reasons why the
respondent should be found responsible. This approach balances the
recipient's obligation to impartially gather and objectively evaluate
all relevant evidence, including inculpatory and exculpatory evidence,
with the parties' equal right to participate in furthering each party's
own interests by identifying evidence overlooked by the investigator
and evidence the investigator erroneously deemed relevant or irrelevant
and making arguments to the decision-maker regarding the relevance of
evidence and the weight or credibility of relevant evidence. In
response to commenters' suggestions, we have added phrasing in Sec.
106.45(b)(5)(vi) to emphasize that the evidence gathered and sent to
the parties for inspection and review is evidence ``directly related to
the allegations'' which must specifically include ``inculpatory or
exculpatory evidence whether obtained from a party or other source.''
Such inculpatory or exculpatory evidence (related to the allegations)
may, therefore, be gathered by the investigator from, for example, law
enforcement where a criminal investigation is occurring concurrently
with the recipient's Title IX grievance process.
While it may be true in some respects that this provision affords
parties greater protection than some courts have determined is required
under constitutional due process or concepts of fundamental fairness,
that does not necessarily mean that protections such as those contained
in Sec. 106.45 are not desirable features of a consistent, transparent
grievance process that enhances the fairness and truth-seeking function
of the process.\1175\ In response to commenters' concerns about
disclosure of private medical, psychological, and similar treatment
records, these final regulations provide in Sec. 106.45(b)(5)(i) that
a recipient cannot access, consider, disclose, or otherwise use a
party's records that are made or maintained by a physician,
psychiatrist, psychologist, or other recognized professional or
paraprofessional acting in the professional's or paraprofessional's
capacity, or assisting in that capacity, and which are made and
maintained in connection with the provision of treatment to the party,
unless the recipient obtains the party's voluntary, written consent to
do so for a grievance process under Sec. 106.45. If the party is not
an ``eligible student,'' as defined in 34 CFR 99.3, then the recipient
must obtain the voluntary, written consent of a ``parent,'' as defined
in 34 CFR 99.3.\1176\ Accordingly, a recipient will not access,
consider, disclose, or otherwise use some of the most sensitive
documents about a party without the party's (or the parent of the
party's) voluntary, written consent, regardless of whether the
recipient already has possession of such treatment records, even if the
records are relevant. This provision adequately addresses commenter's
concerns about sensitive information that may be shared with the other
party pursuant to
[[Page 30304]]
Sec. 106.45(b)(5)(vi). Non-treatment records and information, such as
a party's financial or sexual history, must be directly related to the
allegations at issue in order to be reviewed by the other party under
Sec. 106.45(b)(5)(vi), and all evidence summarized in the
investigative report under Sec. 106.45(b)(5)(vii) must be ``relevant''
such that evidence about a complainant's sexual predisposition would
never be included in the investigative report and evidence about a
complainant's prior sexual behavior would only be included if it meets
one of the two narrow exceptions stated in Sec. 106.45(b)(6)(i)-(ii)
(deeming all questions and evidence about a complainant's sexual
predisposition ``not relevant,'' and all questions and evidence about a
complainant's prior sexual behavior ``not relevant'' with two limited
exceptions).
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\1175\ For further discussion see the ``Role of Due Process in
the Grievance Process'' section of this preamble.
\1176\ 34 CFR 99.3 is part of regulations implementing FERPA;
for further discussion of the intersection between FERPA and these
final regulations, see the ``Section 106.6(e) FERPA'' subsection of
the ``Clarifying Amendments to Existing Regulations'' section of
this preamble.
---------------------------------------------------------------------------
The Department declines to define certain terms in this provision
such as ``upon request,'' ``relevant,'' or ``evidence directly related
to the allegations,'' as these terms should be interpreted using their
plain and ordinary meaning. We note that ``directly related'' in Sec.
106.45(b)(5)(vi) aligns with requirements in FERPA, 20 U.S.C.
1232g(a)(4)(A)(i).\1177\ We also acknowledge that ``directly related''
may sometimes encompass a broader universe of evidence than evidence
that is ``relevant.'' However, the Sec. 106.45 grievance process is
geared toward reaching reliable, accurate outcomes in a manner that
keeps the burden of collecting and evaluating relevant evidence on the
recipient while giving both parties equally strong, meaningful
opportunities to present, point out, and contribute relevant evidence,
so that ultimately the decision-maker objectively evaluates relevant
evidence and understands the parties' respective views and arguments
about how and why evidence is persuasive or should lead to the outcome
desired by the party. The Department therefore believes it is important
that at the phase of the investigation where the parties have the
opportunity to review and respond to evidence, the universe of that
exchanged evidence should include all evidence (inculpatory and
exculpatory) that relates to the allegations under investigation,
without the investigator having screened out evidence related to the
allegations that the investigator does not believe is relevant. The
parties should have the opportunity to argue that evidence directly
related to the allegations is in fact relevant (and not otherwise
barred from use under Sec. 106.45), and parties will not have a robust
opportunity to do this if evidence related to the allegations is
withheld from the parties by the investigator. For example, an
investigator may discover during the investigation that evidence exists
in the form of communications between a party and a third party (such
as the party's friend or roommate) wherein the party characterizes the
incident under investigation. If the investigator decides that such
evidence is irrelevant (perhaps from a belief that communications
before or after an incident do not make the facts of the incident
itself more or less likely to be true), the other party should be
entitled to know of the existence of that evidence so as to argue about
whether it is relevant. The investigator would then consider the
parties' viewpoints about whether such evidence (directly related to
the allegations) is also relevant, and on that basis decide whether to
summarize that evidence in the investigative report. A party who
believes the investigator reached the wrong conclusion about the
relevance of the evidence may argue again to the decision-maker (i.e.,
as part of the party's response to the investigative report, and/or at
a live hearing) about whether the evidence is actually relevant, but
the parties would not have that opportunity if the evidence had been
screened out by the investigator (that is, deemed irrelevant) without
the parties having inspected and reviewed it as part of the exchange of
evidence under Sec. 106.45(b)(5)(vi).
---------------------------------------------------------------------------
\1177\ For further discussion see the ``Section 106.6(e) FERPA''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble.
---------------------------------------------------------------------------
In response to commenters' concerns that proposed Sec.
106.45(b)(5)(vi) unduly imposed costly or burdensome restrictions by
specifying that the evidence sent to the parties must be ``in an
electronic format, such as a file sharing platform, that restricts the
parties and advisors from downloading or copying the evidence,'' we
have removed reference to a file-sharing platform and revised this
provision to state that recipients must send the evidence subject to
inspection and review to each party, and the party's advisor (if any),
in electronic format or hard copy. Under the final regulations,
therefore, recipients are neither required nor prohibited from using a
file sharing platform that restricts parties and advisors from
downloading or copying the evidence. Recipients may require parties and
advisors to refrain from disseminating the evidence (for instance, by
requiring parties and advisors to sign a non-disclosure agreement that
permits review and use of the evidence only for purposes of the Title
IX grievance process), thus providing recipients with discretion as to
how to provide evidence to the parties that directly relates to the
allegations raised in the formal complaint.
With regard to the sharing of confidential information, a recipient
may permit or require the investigator to redact information that is
not directly related to the allegations (or that is otherwise barred
from use under Sec. 106.45, such as information protected by a legally
recognized privilege, or a party's treatment records if the party has
not given written consent) contained within documents or other evidence
that are directly related to the allegations, before sending the
evidence to the parties for inspection and review. Further, as noted
above, recipients may impose on the parties and party advisors
restrictions or require a non-disclosure agreement not to disseminate
any of the evidence subject to inspection and review or use such
evidence for any purpose unrelated to the Title IX grievance process,
as long as doing so does not violate these final regulations or other
applicable laws. We reiterate that redacting ``confidential''
information is not the same as redacting information that is not
``directly related to the allegations'' because information that is
confidential, sensitive, or private may still be ``directly related to
the allegations'' and thus subject to review by both parties.
Similarly, a recipient may permit or require the investigator to redact
from the investigative report information that is not relevant, which
is contained in documents or evidence that is relevant, because Sec.
106.45(b)(5)(vii) requires the investigative report to summarize only
``relevant evidence.''
Section 106.45(b)(5)(vi) is not a ``blunt solution'' as a commenter
suggested. The Department recognizes that Title IX enforcement is, in
fact, a nuanced problem, and this recognition has informed the policy
formation as well as the drafting and revising of this particular
provision. We do not believe, as the commenter thinks, that a concern
over false allegations is a ``canard,'' nor does the number of times
that a particular word is used in the NPRM suggest that the Department
is uninterested in, or unmoved by, best practices in the field. We
disagree that Sec. 106.45(b)(5)(vi) fails to acknowledge the
``complexity'' of sexual misconduct on college campuses, because this
provision is part of a carefully prescribed grievance process that aims
to ensure that the parties have
[[Page 30305]]
meaningful opportunities to participate in advancing each party's
interests in these high-stakes cases. The provision proposed in the
NPRM, and revised in these final regulations, not only takes into
account the complexity of sexual misconduct on college campuses, but
considers, as fundamental fairness demands, the experiences and
challenges faced by both complainants and respondents.
The Department is sensitive to commenters' concerns over whether
the final regulations might deter the reporting of sexual harassment.
The Sec. 106.45 grievance process is designed to improve the
reliability and legitimacy of recipients' investigations and
adjudications of Title IX sexual harassment allegations, and we believe
that providing the parties with strong, clear procedural rights
improves the fairness and legitimacy of the grievance process. We
recognize that a formal grievance process is challenging, difficult,
and stressful to navigate, for both complainants and respondents. It is
for this reason that these final regulations ensure that parties are
not inhibited from seeking support and assistance from any source (see
Sec. 106.45(b)(5)(iii)) and that parties have the right to select an
advisor of choice to advise and accompany a party throughout the
grievance process (see Sec. 106.45(b)(5)(iv)). More broadly, the
Department is persuaded by some commenters' concerns that if a
complainant is forced to undergo a grievance process whenever a
complainant reports sexual harassment, complainants may decide not to
report at all, and by other commenters' concerns that without strong,
clear procedural rights, recipients' grievance processes will not reach
reliable outcomes in which parties and public have confidence. The
final regulations therefore increase the obligations on recipients to
respond promptly and supportively to every complainant when the
recipient receives notice that the complainant has allegedly been
victimized by sexual harassment (without requiring any proof or
evidence supporting the allegations) irrespective of the existence of a
grievance process, promote respect for a complainant's autonomy over
whether or not to file a formal complaint that initiates a grievance
process, and protect complainants from retaliation for refusing to
participate in a grievance process. We have revised Sec. 106.8, Sec.
106.30, and Sec. 106.44 significantly to achieve these aims and have
added Sec. 106.71. For example, Sec. 106.8 emphasizes the need for
every complainant and all third parties to have clear, accessible
options for how to report sexual harassment to the Title IX
Coordinator; the definitions of ``complainant'' and ``formal
complaint'' in Sec. 106.30 have been revised to clarify that the
choice to initiate a grievance process must remain within the control
of a complainant unless the Title IX Coordinator has specific reasons
justifying the filing of a formal complaint over the wishes of a
complainant; Sec. 106.44(a) now requires a recipient to offer
supportive measures to a complainant with or without a formal complaint
being filed using an interactive process whereby the Title IX
Coordinator must discuss and take into account the complainant's wishes
regarding the supportive measures to be provided and explain to the
complainant the option of filing a formal complaint; and Sec. 106.71
protects the right of any individual to choose not to participate in a
grievance process without facing retaliation. The Department intends
for these final regulations to assure complainants that complainants
may report sexual harassment and receive supportive measures whether or
not the complainant also participates in a grievance process, and to
assure complainants and respondents that a grievance process will be
fair, consistent with constitutional due process, and give both parties
meaningful opportunity to advance the party's own interests regarding
the case outcome, in an investigation and adjudication overseen by
impartial, unbiased Title IX personnel who do not prejudge the facts at
issue and objectively evaluate inculpatory and exculpatory evidence
before reaching determinations regarding responsibility.
The Department disagrees with commenters' assertions that the final
regulations would allow the recipient (or the respondent) to coerce
witnesses, turn a ``blind eye'' to sexual violence, or ``revictimize''
complainants. As discussed above, Sec. 106.71 prohibits retaliation
(which includes coercion) against any person for participating or
refusing to participate in a Title IX proceeding and Sec. 106.44(a)
requires recipients to respond to every complainant by offering
supportive measures; these requirements ensure that no recipient may
turn a blind eye to reported sexual violence. The Sec. 106.45
grievance process, including allowing both parties the opportunity to
inspect and review evidence directly related to the allegations,
benefits complainants as much as respondents by ensuring that each
party is aware of evidence and may then make arguments that further the
party's own interests based on the evidence.\1178\
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\1178\ E.g., Monroe H. Freedman, Our Constitutionalized
Adversary System, 1 Chapman L. Rev. 57, 57 (1998) (``In its simplest
terms, an adversary system resolves disputes by presenting
conflicting views of fact and law to an impartial and relatively
passive arbiter, who decides which side wins what. . . . Thus, the
adversary system represents far more than a simple model for
resolving disputes. Rather, it consists of a core of basic rights
that recognize and protect the dignity of the individual in a free
society.'') (emphasis added); see also David L. Kirn, Proceduralism
and Bureaucracy: Due Process in the School Setting, 28 Stanford L.
Rev. 841, 847-48 (1976) (due process includes the right of parties
to participate in the presentation of evidence, which serves the
dual interest of improving the reliability of outcomes and the
parties' sense of fairness of the proceeding).
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The Department disagrees that due process is not implicated until
corrective action is proposed. Due process is not only a concern after
corrective or punitive action is taken, but throughout the entire
process leading to a recipient's decision to impose corrective or
disciplinary action.\1179\
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\1179\ For further discussion see the ``Role of Due Process in
the Grievance Process'' section of this preamble.
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The Department disagrees that Sec. 106.45(b)(5)(vi)-(vii) are a
barrier to effective investigations and case resolutions, and believes
that to the contrary, these provisions work to guarantee effective
investigations and resolutions by allowing the parties full access to
the evidence gathered, and to the investigative report that summarizes
relevant evidence, so the parties may make corrections, provide
appropriate context, and prepare their responses and defenses before a
decision-maker reaches a determination regarding responsibility.
We appreciate the commenters who stated that the ten-day time frame
provision is appropriate for the parties to review and respond to the
evidence directly related to the allegations. We agree that the result
of this provision will be expedited hearings because the parties will
have had the opportunity to see, review, and consider their responses
to evidence prior to showing up at a hearing. However, this provision's
purpose is not solely to speed up the process. The Department believes
that this provision, in conjunction with the other provisions in Sec.
106.45, balances the need for reasonably prompt resolution of Title IX
grievance processes with the need to ensure that these grievance
processes are thorough and fair.
The Department understands commenters' concerns that a ten-day time
period for the parties to inspect and review evidence (and then a ten-
day
[[Page 30306]]
time period to review and respond to the investigative report) is too
long a timeline, but we do not agree that this timeline is an
``overregulation'' or that it is more rigid than a similar proceeding
in a criminal court. Instead, the Department finds that the time frame
is appropriate for the parties to read and respond to the evidence
subject to inspection and review, and then to the investigative report.
Recipients may choose whether the ten days should be business days or
calendar days (or may use a different calculation of ``days'' that
works with the recipient's administrative operations, such as ``school
days.'') Although the recipient is required to provide at least ten
days for inspection and review, the recipient may give the parties more
than ten days to respond, bearing in mind that the recipient must
conclude the grievance process within the reasonably prompt time frames
to which the recipient must commit under Sec. 106.45(b)(1)(v).
Section 106.45(b)(5)(vi)-(vii) concerning inspection and review of
evidence, and review of the investigative report, are not overbroad or
likely to lead to information withholding, and do not force the parties
to share irrelevant information. These provisions appropriately focus
the investigation on evidence ``directly related to the allegations''
and to ``relevant'' evidence in furtherance of each party's interest in
permitting pertinent evidence to come to light so that any
misunderstandings, confusions, and contradictions can be clarified. As
discussed above, the Department has revised Sec. 106.45 to expressly
forbid a recipient from using a party's medical, psychological, and
similar records without the party's voluntary, written consent, and
from using information protected by a legally recognized privilege, and
deems ``not relevant'' questions and evidence about a complainant's
prior sexual behavior (with two limited exceptions).
We appreciate the commenters' suggestions regarding the inclusion
of: A requirement that the viewing of the relevant evidence be
supervised; the appointment of a special master; and a provision
informing parties of the consequences of submitting false information.
Commenters have noted that recipients' restrictions on a party's
ability to view the evidence gathered in a case (for example, by
requiring the party to sit in a certain room in the recipient's
facility, for only a certain length of time, with or without the
ability to take notes while reviewing the evidence, and perhaps while
supervised by a recipient administrator) have reduced the
meaningfulness of the party's opportunity to review evidence and use
that review to further the party's interests. We believe it is
important for the parties to receive a copy of the evidence subject to
inspection and review so that the parties and their advisors may, over
the course of a ten-day period, carefully consider the evidence
directly related to the allegations, prepare arguments about whether
all of that evidence is relevant and whether relevant evidence has been
omitted, and consider how the party intends to respond to the evidence.
On the other hand, we do not believe that the purposes of the parties'
right to inspect and review evidence necessitates or justifies the
Department requiring recipient to appoint a ``special master'' to
oversee the exchange of evidence. The recipient's investigator will be
well-trained in how to conduct an investigation and grievance process
and in issues of relevance, under Sec. 106.45(b)(1)(iii). We address
warnings about making false statements during a grievance process in
Sec. 106.45(b)(2), which requires the written notice of allegations
that a recipient sends to both parties upon receipt of a formal
complaint to contain a statement about whether the recipient's code of
conduct contains a prohibition against making false statements during a
grievance process. We do not believe that a further statement about
false statements accompanying sending the evidence to the parties under
Sec. 106.45(b)(5)(vi) serves a necessary purpose and decline to
require it.
We decline to change the requirement that recipients send the
evidence to a party's advisor (if the party has one).\1180\ If a party
has exercised the party's right to select an advisor of the party's
choice, it is for the purpose of receiving that advisor's assistance
during the grievance process, and we do not believe that a party's ten-
day window to review and respond to the evidence should be narrowed by
placing the burden on the party to receive the evidence from the
recipient and then send the evidence to the party's advisor. However,
nothing in these final regulations precludes a party from requesting
that the recipient not send the evidence subject to inspection and
review to the party's advisor. Similarly, the final regulations do not
preclude the recipient from asking the parties to confirm whether or
not the party has an advisor prior to sending the evidence under Sec.
106.45(b)(5)(vi).
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\1180\ We have revised Sec. 106.45(b)(5)(vii) to require the
investigative report to be sent to the parties and their advisors
(if any), for the same reasons that we decline to remove the
requirement to send the evidence subject to inspect and review to
the parties and their advisors.
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The Department disagrees that sending the evidence, or
investigative report, to the parties (and their advisors, if any) will
lead to an ``extreme disparity of potential outcomes.'' The provisions
in Sec. 106.45(b)(5)(vi)-(vii) are focused on providing precisely the
opposite of the commenter's conclusion: Predictable procedural
requirements that respondents and complainants can rely upon to afford
them a predictable, fair process.
The Department does not agree that Sec. 106.45(b)(5)(vi)-(vii), or
the Sec. 106.45 grievance process as a whole, creates the same rights
to discovery afforded to civil litigation parties or criminal
defendants. For example, parties to a Title IX grievance process are
not granted the right to depose parties or witnesses, nor to invoke a
court system's subpoena powers to compel parties or witnesses to appear
at hearings, which are common features of procedural rules governing
litigation and criminal proceedings. Recognizing that schools,
colleges, and universities are educational institutions and not courts
of law, the Department has prescribed a grievance process that
incorporates procedures rooted in principles of due process and
fundamental fairness, to give parties clear, meaningful opportunities
to participate in influencing the case outcome that advances each
party's interests, without imposing on recipients the expectation that
recipients should function as de facto courts.
Similarly, the Department does not agree that Sec.
106.45(b)(5)(vi)-(vii) will prolong proceedings, create ancillary
disputes, or invade the privacy of parties and witnesses. As various
courts have held,\1181\ parties are entitled to constitutional due
process from public institutions and a fair process from private
institutions during Title IX grievance proceedings. In these final
regulations, the Department has prescribed a process that provides
sufficient due process protections to resolve allegations of sexual
harassment in a recipient's education program or activity, in a manner
that permits (and requires) a recipient to conclude its grievance
process within designated, reasonably prompt time frames, and has taken
care to protect party privacy while ensuring that the parties have
access to
[[Page 30307]]
information that may affect the outcome of the case.
---------------------------------------------------------------------------
\1181\ E.g., Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 69
(1st Cir. 2019); Doe v. Purdue Univ. et al., 928 F.3d 652 (7th Cir.
2019); Doe v. Baum, 903 F.3d 575 (6th Cir. 2018).
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We appreciate the concerns of many commenters about the burden and
costs that Sec. 106.45(b)(5)(vi)-(vii) may impose upon recipients. The
Department understands that these provisions have the potential to
generate modest burden and costs, but believes that the financial costs
and administrative burdens resulting from the provisions are far
outweighed by the due process protections ensured by these provisions.
We disagree with the assertion that ``sharing evidence with parties''
results in unacceptable burdens on recipients, because reviewing the
universe of evidence that is, or may be, relevant represents a critical
part of enabling parties to have a meaningful opportunity to be heard,
which is an essential component of due process and fundamental
fairness. The Department appreciates that many recipients' Title IX
offices are inundated and over-worked, but sacrificing procedures
important to concepts of due process and fundamental fairness is not an
acceptable means of alleviating administrative burdens. We reiterate
that where reasonable, we have revised Sec. 106.45(b)(5)(vi)-(vii) to
alleviate unnecessary administrative burdens on recipients, for example
by removing reference to a file sharing platform and allowing the
recipient to send the evidence and investigative report electronically
or by hard copy.
The Department also understands that a potentially different set of
issues regarding Sec. 106.45(b)(5)(vi)-(vii) may occur where there are
multiple formal complaints arising out of a single incident. To
expressly authorize recipients to handle cases that arise out of the
same incident of sexual harassment involving multiple complainants,
multiple respondents, or both, we have added Sec. 106.45(b)(4) to
expressly grant discretion to recipients to consolidate formal
complaints involving more than one complainant or more than one
respondent, where the allegations of sexual harassment arise out of the
same facts or circumstances. The Department also provides in Sec.
106.45(b)(4) that where a grievance process involves more than one
complainant or more than one respondent, references in Sec. 106.45 to
the singular ``party,'' ``complainant,'' or ``respondent'' must include
the plural, as applicable. These revisions help clarify that a single
grievance process might involve multiple complainants or multiple
respondents; we emphasize that in such a situation, each individual
party has each right granted to a party under Sec. 106.45 and these
final regulations. For example, in a case involving multiple
complainants, a recipient would not be permitted to designate one
complainant as a ``lead complainant'' and use such a designation to,
for instance, only send the evidence to the ``lead complainant''
instead of to each complainant individually.
Parties have the opportunity to provide additional information or
context in their written response after reviewing the evidence under
Sec. 106.45(b)(5)(vi). The final regulations do not directly address
an extension of the timeline for responses, should the parties present
additional information after reviewing the evidence. These final
regulations provide that the parties must have at least ten days to
submit a written response after review and inspection of the evidence
directly related to the allegations raised in a formal complaint. A
recipient may require all parties to submit any evidence that they
would like the investigator to consider prior to when the parties' time
to inspect and review evidence begins. Alternatively, a recipient may
choose to allow both parties to provide additional evidence in response
to their inspection and review of the evidence under Sec.
106.45(b)(5)(vi) and also an opportunity to respond to the other
party's additional evidence. Similarly, a recipient has discretion to
choose whether to provide a copy of each party's written response to
the other party to ensure a fair and transparent process and to allow
the parties to adequately prepare for any hearing that is required or
provided under the grievance process. A recipient's rules or practices
other than those required by Sec. 106.45 that a recipient adopts must
apply equally to both parties as required by Sec. 106.45(b). If a
recipient chooses not to allow the parties to respond to additional
evidence provided by a party in these circumstances, the parties will
still receive the investigative report that fairly summarizes relevant
evidence under Sec. 106.45(b)(5)(vii) and will receive an opportunity
to inspect and review all relevant evidence at any hearing and to refer
to such evidence during the hearing, including for purposes of cross-
examination at live hearings under Sec. 106.45(b)(5)(vi). If a
recipient allows parties to provide additional evidence after reviewing
the evidence under Sec. 106.45(b)(5)(vi), any such additional evidence
that is summarized in the investigative report will not qualify as new
evidence that was reasonably available at the time the determination
regarding responsibility was made for purposes of an appeal under Sec.
106.45(b)(8).
The Department agrees with the commenter's concern that the
investigative report should contain relevant evidence including
exculpatory and inculpatory evidence. Section 106.45(b)(1)(ii) makes
clear that the recipient must evaluate relevant evidence including
inculpatory and exculpatory evidence. The final regulations add the
phrase ``and inculpatory or exculpatory evidence whether obtained from
a party or other source'' to Sec. 106.45(b)(5)(vi) with respect to the
evidence sent to the parties for inspection and review. Thus, where
Sec. 106.45(b)(5)(vii) requires the investigative report to fairly
summarize all the relevant evidence, the final regulations make clear
that evidence may be relevant whether it is inculpatory or exculpatory.
We do not agree that sharing the investigative report prior to its
finalization would lead to errors, dissatisfaction, and the appearance
of bias. In fact, those are the very potential problems that sharing
the report with the parties seeks to avoid. The parties' responses may
address perceived errors that may be corrected, so that the parties
have an opportunity to express and note their contentions for or
against the investigative report, and sharing the investigative report
at the same time, to both parties, helps avoid any appearance of bias.
We appreciate the commenter's questions regarding how the evidence
and the investigative report should be shared with the parties. The
final regulations revise Sec. 106.45(b)(5)(vi) to state that ``the
recipient must send to each party and the party's advisor, if any, the
evidence subject to inspection and review in an electronic format or a
hard copy.'' Similar language is used in Sec. 106.45(b)(5)(vii)
regarding sending the parties, and their advisors, copies of the
investigative report, electronically or in hard copy format. The
Department reminds recipients that these provisions contain baseline
requirements, and additional practices to address privacy concerns,
such as digital encryption, that do not run afoul of Sec.
106.45(b)(5)(vi)-(vii), or any other provision of the final
regulations, are not precluded by these final regulations. The final
regulations do not require recipients to provide individual laptops to
parties to review the evidence or investigative report, but a recipient
may do so at the recipient's discretion, and the option to send parties
hard copies under these provisions gives recipients the flexibility to
respond to a party's
[[Page 30308]]
inability to access digital or electronic copies.
The Department does not wish to prohibit the investigator from
including recommended findings or conclusions in the investigative
report. However, the decision-maker is under an independent obligation
to objectively evaluate relevant evidence, and thus cannot simply defer
to recommendations made by the investigator in the investigative
report. As explained in the ``Section 106.45(b)(7)(i) Single
Investigator Model Prohibited'' subsection of the ``Determinations
Regarding Responsibility'' subsection of the ``Section 106.45
Recipient's Response to Formal Complaints'' section of this preamble,
the decision-maker cannot be the same person as the Title IX
Coordinator or the investigator and must issue a written determination
regarding responsibility, and one of the purposes of that requirement
is to ensure that independent evaluation of the evidence gathered is
made prior to reaching the determination regarding responsibility.
The Department appreciates commenters' concerns and requests for
clarification regarding the application of the final regulations to the
elementary and secondary school environment. We disagree that the
grievance process timeline impairs an elementary and secondary school
recipient's ability to effectuate meaningful change to a student's
behavior. There are many actions a recipient may take with respect to a
respondent that constitute permissible supportive measures as defined
in Sec. 106.30, which may correct or modify a respondent's behavior
without being punitive or disciplinary. Educational conversations with
students, for example, and impressing on a student the recipient's
anti-sexual harassment policy and code of conduct expectations, need
not constitute punitive or disciplinary actions that a school is
precluded from taking without following a Sec. 106.45 grievance
process. Similarly, we disagree that Sec. 106.45 generally, or Sec.
106.45(b)(5)(vi)-(vii) in particular, foster hostility or hamper a
school district's ability to maintain a safe school environment.
Providing a predictable, fair grievance process before imposing
discipline on students may help reduce hostility and tensions in a
school environment, and recipients have many options under the Sec.
106.30 definition of supportive measures for taking action to protect
party safety and deter sexual harassment before or during any grievance
process and regardless of whether a grievance process is ever
initiated. We also remind recipients that Sec. 106.44(c) allows a
respondent to be removed from education programs or activities on an
emergency basis, without pre-removal notice or hearing, and regardless
of whether a grievance process is pending regarding the sexual
harassment allegations from which the imminent threat posed by the
respondent has arisen.
With regard to records retention, the Department addresses this
issue under Sec. 106.45(b)(10). We have revised that provision,
including by extending the record retention period from three years as
proposed in the NPRM, to seven years under these final regulations.
The Department appreciates the commenter's responses to Directed
Question 7. After considering the many public comments responsive to
this directed question posed in the NPRM, the Department finds that it
would be inappropriate to dilute the requirement that there be a direct
relationship between the evidence in question and the allegations under
investigation. For reasons discussed above, the final regulations
require inspection and review of evidence that is directly related to
the allegations, including inculpatory and exculpatory evidence
obtained from a party or any other source, and require the
investigative report to summarize only relevant evidence.
Changes: The Department makes the following changes to
106.45(b)(5)(vi). First, the phrase ``and inculpatory or exculpatory
evidence whether obtained from a party or other source,'' is added.
Second, we have added ``or a hard copy'' as an option for sending to
the parties and their advisors the evidence subject to inspection and
review. Lastly, we have removed the phrase ``such as a file sharing
platform, that restricts the parties and advisors from downloading or
copying the evidence.''
Section 106.45(b)(5)(vii) An Investigative Report That Fairly
Summarizes Relevant Evidence
Comments: Many commenters expressed support for Sec.
106.45(b)(5)(vii) and asserted that the provision would work to restore
fairness and due process for complainants and respondents. A number of
commenters stated that, in their experience, the ten-day period
response period is a reasonable and appropriate time frame. One
commenter characterized the NPRM as a long overdue correction to the
withdrawn 2011 Dear Colleague Letter, which the commenter called a
``wrongful repudiation'' of due process. The commenter also argued for
the Department to adopt a particular recipient's policy as a model for
procedures that other recipients should employ in addressing
inappropriate sexual activity while simultaneously assuring due process
protections.
A number of commenters opposed the provision. Many commenters
expressed concern over the mandated ten-day period. Commenters asserted
that recipients should determine the appropriate timelines for their
process, rather than the Department prescribing this timeline.
Similarly, another commenter asserted that ``rigid time frames''
substantially lengthen investigation and adjudication processes. One
commenter requested clarification as to why the investigative report
must be completed and made available ten days prior to a hearing. The
commenter was concerned that such a requirement results in an overly
burdensome process with negligible benefits. A different commenter
expressed concern that if new information arises during the review of
the report, the timeline should be extended to avoid exploitative
efforts by either party. One commenter questioned how institutions
should respond when a party requests additional time to review the
report before the hearing.
One commenter requested clarification over when the parties'
written responses to the investigative report are due and what the
investigator is supposed to do with the parties' responses.
Some commenters argued that the proposed provision is unnecessary
because the parties could address and respond to evidence during a
hearing. Many commenters stated that sharing the investigative report
is burdensome and could obstruct the investigation. A number of
commenters pointed out that the proposed provision would require them
to change processes, causing a disruption in how they handle Title IX
enforcement on their campus. Citing the addition of significant time
and resource requirements to their institution's current procedures,
one commenter argued that small institutions lack the capacity right
now to comply with this requirement. A different commenter concluded
that this provision will impose ``shadow costs'' on institutions.
Another commenter proposed deleting Sec. 106.45(b)(5)(vii)
entirely because of concerns over what should be included in the
investigative report, the potential for one of the parties to demand a
time extension if the report contains a recommendation of
responsibility, and the issues raised in multiple complainant
proceedings. The same commenter recommended that the investigative
report include facts, interview statements from the parties, a
preliminary credibility analysis, and the
[[Page 30309]]
policy applied to the analysis of the alleged behavior. A different
commenter suggested that the report only include facts, with no
recommended findings or conclusions, stating that summaries can be
fraught with ``asymmetrical information delivery'' and may not provide
a means for any party to submit corrections. One commenter proposed
removing the mandate to share the investigative report with the
student's advisor and allowing the student to choose whether they want
their advisor to see the report.
One commenter expressed concern that the provision is too vague and
leaves many unanswered questions, such as what the final regulations
would allow if the parties need to make changes following their review
or if additional evidence is located.
A commenter requested a clarification of, or a change to, the
language in Sec. 106.45(b)(5)(vi), which refers to ``directly related
to the evidence,'' and Sec. 106.45(b)(5)(vii), which refers to
``relevant evidence.''
A commenter stated that, as written, this provision would allow
institutions to implement access controls that could limit or deny due
process, such as declaring that the report is the property of the
institution or creating time limits on viewings. The commenter proposed
that the provision should be revised to allow the parties easy access
to the report until the final determination is made.
A commenter concluded that provision goes beyond any due process
requirement, that they are aware of, to have information in the
evidentiary file synthesized into a summary report ten days before the
hearing. The commenter also requested clarification as to how the
recipient must amend its investigative report in light of the parties'
responses.
Many commenters questioned whether the Department meant ten
calendar days or ten business days.
Discussion: The Department appreciates commenters' support of Sec.
106.45(b)(5)(vii). We agree that the final regulations seek to provide
strong, clear procedural protections to complainants and respondents,
including apprising both parties of the evidence the investigator has
determined to be relevant, in order to adequately prepare for a hearing
(if one is required or otherwise provided) and to submit responses
about the investigative report for the decision-maker to consider even
where a hearing is not required or otherwise provided.
We appreciate the commenter's proposal to follow policies in place
at a particular institution. We acknowledge the efforts of particular
institutions and have considered policies in place at various
individual institutions, but for reasons described in the ``Role of Due
Process in the Grievance Process'' section and throughout this
preamble, we do not adopt any particular institution's policies or
procedures wholesale. We believe that the provisions outlined in these
final regulations provide necessary and appropriate due process and
fundamental fairness protections to complainants and respondents.
As some commenters have noted, Sec. 106.45(b)(5)(vii) aligns with
the practice of many recipients who have become accustomed to
conducting investigations in Title IX sexual harassment proceedings and
create an investigative report as part of such an investigation. We
believe that a standardized provision regarding an investigative report
is important in the context of Title IX proceedings even though such a
step may not be required in civil litigation or criminal proceedings
and even though specific parts of this provision may differ from
recipients' current practices (i.e., ensuring that parties are sent a
copy of the investigative report ten days prior to the time that a
determination regarding responsibility will be made). The Department
believes that the purpose of Sec. 106.45(b)(5)(vii) and the specific
requirements in this provision are appropriate because a Title IX
grievance process occurs in an educational institution (not in a court
of law) and because a recipient of Federal funds agrees, under Title
IX, to operate education programs or activities free from sex
discrimination. It is thus appropriate to obligate the recipient (and
not the parties to disputed sexual harassment allegations) to take
reasonable steps calculated to ensure that the burden of gathering
evidence remains on the recipient, yet to also ensure that the
recipient gives the parties meaningful opportunity to understand what
evidence the recipient collects and believes is relevant, so the
parties can advance their own interests for consideration by the
decision-maker. A valuable part of this process is giving the parties
(and advisors who are providing assistance and advice to the parties)
adequate time to review, assess, and respond to the investigative
report in order to fairly prepare for the live hearing or submit
arguments to a decision-maker where a hearing is not required or
otherwise provided. Without advance knowledge of the investigative
report, the parties will be unable to effectively provide context to
the evidence included in the report.
While we are sensitive to recipients' concerns regarding burden,
cost, and capacity, the Department believes that the required process
in Sec. 106.45(b)(5)(vii) does not present onerous demands on
recipients. Concerns over burden and capacity should be weighed, not
only against fundamental fairness and due process, but in the context
of the phase of an investigation when this requirement is in place:
During the period when the investigative report should be compiled
anyway (that is, after evidence has been gathered and before a
determination will be made). In the context of a grievance process that
involves multiple complainants, multiple respondents, or both, a
recipient may issue a single investigative report. We have added Sec.
106.45(b)(4) to expressly authorize a recipient, in the recipient's
discretion, to consolidate formal complaints when allegations all arise
out of the same facts or circumstances.
Section 106.45(b)(5)(vii) is important for fairness as well as
efficiency purposes; it assures that the investigative report is
completed in an expeditious manner, provides the opportunity to the
parties to prepare their arguments and defenses, and serves the goal of
ensuring constructive, meaningful, and effective hearings (where
required, or otherwise provided) and informed determinations regarding
responsibility even where the determination is reached without a
hearing. Section 106.45(b)(5)(vii) presents no obstacle to an effective
investigation and reliable resolution because it comes after an
investigation has finished gathering evidence.
The Department shares commenters' concerns about recipient
practices that limit access to the investigative report. Practices or
rules that limit a party's (or party's advisor's) access to the
investigative report violate Sec. 106.45(b)(5)(vii) because under this
provision recipients must send a copy of the investigative report
electronically or by hard copy to each party and the party's advisor,
if any. While this provision does not require a recipient to use a file
sharing platform that restricts the parties and advisors from
downloading or copying the evidence, recipients may choose to use a
file sharing platform that restricts the parties and advisors from
downloading or copying the investigative report under Sec.
106.45(b)(5)(vii) and this would constitute sending the parties a copy
``in an electronic format,'' meeting the requirements of this
provision.
[[Page 30310]]
The Department appreciates commenters' suggestions as to what
elements recipients should include in their investigative reports. The
Department takes no position here on such elements beyond what is
required in these final regulations; namely, that the investigative
report must fairly summarize relevant evidence. We note that the
decision-maker must prepare a written determination regarding
responsibility that must contain certain specific elements (for
instance, a description of procedural steps taken during the
investigation) \1182\ and so a recipient may wish to instruct the
investigator to include such matters in the investigative report, but
these final regulations do not prescribe the contents of the
investigative report other than specifying its core purpose of
summarizing relevant evidence.
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\1182\ Section 106.45(b)(7)(ii).
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The Department does not adopt commenters' suggestions to allow
institutions to set their own timelines with respect to the parties'
window of time to review the investigative report, but the Department
has intentionally given recipients flexibility to designate the
recipient's own ``reasonably prompt time frames'' for the conclusion of
each phase of the grievance process (including appeals and any informal
resolution processes) pursuant to Sec. 106.45(b)(1)(v). While we
understand from commenters that some recipients may desire to conclude
their grievance process in fewer than 20 days (i.e., the two ten-day
timelines prescribed in Sec. 106.45 which, in combination, preclude a
recipient from designating a time frame for conclusion of an entire
grievance process in fewer than 20 days), the Department believes that
20 or fewer days has not been widely viewed as a reasonable time frame
for conducting and concluding a truly fair investigation and
adjudication of allegations that carry such high stakes for all parties
involved. This belief is buttressed by commenters who appreciated that
the Department has withdrawn the expectation set forth in the withdrawn
2011 Dear Colleague Letter for recipients to conclude a grievance
process within 60 calendar days.\1183\ We reiterate that a formal
complaint of Title IX sexual harassment alleges serious misconduct that
has jeopardized a person's equal educational access, and the
determination regarding responsibility carries grave consequences for
each party; the purpose of the Sec. 106.45 grievance process is to
reduce the likelihood of positive or negative erroneous outcomes (i.e.,
inaccurate findings of responsibility and inaccurate findings of non-
responsibility). Ensuring that each party, in each case, receives
effective notice and meaningful opportunity to be heard necessitates
some procedures that involve some passage of time (e.g., time for
parties and their advisors to review evidence, and to review the
investigator's summary of relevant evidence). The Sec. 106.45
grievance process aims to balance the need for a thorough, fair
investigation that permits the parties' meaningful participation, with
the need to conclude a grievance process promptly to bring resolution
to situations that are difficult for both parties to navigate.
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\1183\ 2011 Dear Colleague Letter at 12 (``Based on OCR
experience, a typical investigation takes approximately 60 calendar
days following receipt of the complaint.''). The Department's
experience, therefore, has long been that an adequate investigation
into sexual harassment allegations typically takes longer than 20
days.
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We appreciate the commenter's suggestion that the student should
get to choose what the student's advisor can see in the investigative
report. We do not believe that this issue requires regulation and we do
not wish to create unnecessary complexity in the recipient's
obligations with respect to sending the investigative report. A party
may always request that the recipient not send the investigative report
to the party's advisor, but if the party has already indicated that the
party has selected an advisor of choice then we believe the better
default practice is for the party's advisor to be sent the
investigative report, so that the burden of receiving the report, then
forwarding it to the party's advisor, does not rest on the party, which
would also result in a de facto shortening of the ten-day window in
which a party--with assistance from an advisor--may review and prepare
responses to the investigator's summary of relevant evidence.
The Department acknowledges the difference between the use of
``directly related to the allegations'' in Sec. 106.45(b)(5)(vi) and
``relevant evidence'' in Sec. 106.45(b)(5)(vii). As discussed above,
in the ``Section 106.45(b)(5)(vi) Inspection and Review of Evidence
Directly Related to the Allegations, and Directed Question 7''
subsection of the ``Investigation'' subsection of the ``Section 106.45
Recipient's Response to Formal Complaints'' section of this preamble,
we acknowledge that ``directly related to the allegations'' may
encompass a broader universe of evidence than evidence that is
``relevant,'' and believe that it is most beneficial for the parties'
access to evidence to be limited by what is directly related to the
allegations, but for the investigator to determine what is relevant
after the parties have reviewed that evidence.
Independent of whether this provision would be required to satisfy
constitutional due process of law, Sec. 106.45(b)(5)(vii) (giving the
parties copies of the investigative report prior to the live hearing or
other time of determination) serves an important function in a Title IX
grievance process, placing the parties on level footing with regard to
accessing information to allow the parties to serve as a check on any
decisions that the recipient makes regarding the relevance of evidence
and omission of relevant evidence. Allowing the parties to review and
respond to the investigative report is important to providing the
parties with notice of the evidence the recipient intends to rely on in
deciding whether the evidence supports the allegations under
investigation. The parties cannot meaningfully respond and put forward
their perspectives about the case when they do not know what evidence
the investigator considers relevant to the allegations at issue.
These final regulations do not prescribe a process for the
inclusion of additional information or for amending or supplementing
the investigative report in light of the parties' responses after
reviewing the report. However, we are confident that even without
explicit regulatory requirements, best practices and respect for
fundamental fairness will inform recipients' choices and practices with
regard to amending and supplementing the report. Recipients enjoy
discretion with respect to whether and how to amend and supplement the
investigative report as long as any such rules and practices apply
equally to both parties, under the revised introductory sentence of
Sec. 106.45(b).
A recipient may give the parties the opportunity to provide
additional information or context in their written response to the
investigative report, as provided in Sec. 106.45(b)(5)(vii), to remedy
any ``asymmetrical information delivery,'' but the Department believes
that in combination, Sec. 106.45(b)(5)(vi)-(vii) reduce the likelihood
of asymmetrical information delivery because the parties each will have
the opportunity to review all the evidence related to the allegations
and then all the evidence the investigator decides is relevant. A
recipient may require all parties to submit any evidence that they
would like the investigator to consider prior to the finalization of
the investigative report thereby allowing each party to respond to the
evidence in the investigative report sent to the
[[Page 30311]]
parties under Sec. 106.45(b)(5)(vii). A recipient also may provide
both parties with an opportunity to respond to any additional evidence
the other party proposes after reviewing the investigative report. If a
recipient allows parties to provide additional evidence in response to
the investigative report, any such additional evidence will not qualify
as new evidence that was reasonably available at the time the
determination regarding responsibility was made for purposes of an
appeal under Sec. 106.45(b)(8)(i)(B). Similarly, a recipient has
discretion to choose whether to provide a copy of each party's written
response to the other party as an additional measure to allow the
parties to prepare for the hearing (or to be heard prior to the
determination regarding responsibility being made, if no hearing is
required or provided). As noted above, any rules or practices other
than those required by Sec. 106.45 that a recipient adopts must apply
equally to both parties, and a recipient must be mindful that rules it
chooses to adopt that extend time frames must take into account the
recipient's obligation to conclude the entire grievance process within
the recipient's own designated time frame, under Sec. 106.45(b)(1)(v).
To conform with the changes we made to Sec. 106.45(b)(5)(vi), we
have revised Sec. 106.45(b)(5)(vii) to include a provision that
requires the investigative report to be sent to each party and the
party's advisor, if any, in an electronic format or a hard copy. As
stated elsewhere in this preamble, the final regulations do not require
a specific method for calculating ``days.'' Recipients retain
flexibility to adopt the method that best works for the recipient's
operations, including calculating ``days'' using calendar days,
business days, school days, or so forth.
Changes: The Department has revised Sec. 106.45(b)(5)(vii) by
changing the parenthetical to refer to ``this section'' instead of
``Sec. 106.45'' and adding ``or otherwise provided'' after ``if a
hearing is required by this section,'' by requiring the investigative
report to be sent to parties and their advisors, if any, and by adding
the option of sending a copy in electronic format or hard copy.
Hearings
Cross-Examination Generally
Support for Cross-Examination
Comments: Some commenters expressed support for the proposed rules'
requirement in Sec. 106.45(b)(6)(i) that postsecondary institutions
allow cross-examination at a live hearing because in a college or
university setting, where participants are usually adults, cross-
examination is an essential pillar of fair process, and where cases
turn exclusively or largely on witness testimony as is often the case
in peer-on-peer grievances, cross-examination is especially critical to
resolve factual disputes between the parties and give each side the
opportunity to test the credibility of adverse witnesses, serving the
goal of reaching legitimate and fair results.\1184\
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\1184\ Commenters cited: American Bar Association, ABA Criminal
Justice Section Task Force on College Due Process Rights and Victim
Protections, Recommendations for Colleges and Universities in
Resolving Allegations of Campus Sexual Misconduct 9 (2017).
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Some commenters supported Sec. 106.45(b)(6)(i) because live
hearings with cross-examination are consistent with Supreme Court cases
interpreting due process of law,\1185\ as well as recent case law in
which courts have held that cross-examination must be provided in
higher education disciplinary proceedings, particularly when
credibility is at issue, to meet standards of fundamental fairness and
constitutional due process.\1186\ Commenters relied on Sixth Circuit
cases in particular \1187\ to assert that high-stakes cases involving
competing narratives require a mutual test of credibility, and to argue
that the cost to a university of providing a live hearing with cross-
examination is far outweighed by the benefit of reducing the risk of an
erroneous finding of responsibility. Some commenters also pointed to a
California appellate court decision \1188\ where the court found it
ironic that an institution of higher learning, where American history
and government are taught, should stray so far from the principles that
underlie our democracy, and two other California appellate court
decisions \1189\ that one commenter characterized together as
representing unanimous rulings by nine appellate judges that public and
private colleges and universities owe basic due process protections to
students in Title IX proceedings. Several commenters argued that the
recent Sixth Circuit and California appellate decisions illustrate a
trend, or growing judicial consensus, that some kind of cross-
examination should be permitted in serious student misconduct cases
that turn on credibility.\1190\ A few commenters argued that under many
State APAs (Administrative Procedure Acts) students in serious
misconduct cases have a right to cross-examine an accuser and cited
cases from Washington and Oregon as examples.\1191\
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\1185\ Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975);
Mathews v. Eldridge, 424 U.S. 319 (1976).
\1186\ Commenters cited: Doe v. Baum [University of Michigan],
903 F.3d 575, 578 (6th Cir. 2018) (``[t]he ability to cross-examine
is most critical when the issue is the credibility of the
accuser.''); Doe v. Univ. of Cincinnati, 872 F.3d 393, 401 (6th Cir.
2017) (``In the case of competing narratives, `cross-examination has
always been considered a most effective way to ascertain truth.' '')
(internal citations omitted); Doe v. Alger [James Madison
University], 228 F. Supp. 3d 713, 730 (W.D. Va. 2016); Doe v.
Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1070 (2018).
\1187\ Commenters cited: Baum, 903 F.3d at 581; Univ. of
Cincinnati, 872 F.3d at 403.
\1188\ Commenters cited: Doe v. Regents of Univ. of Cal., 28
Cal. App. 5th 44, 61 (2018) (university failed to provide a fair
hearing by selectively applying rules of evidence, refusing to show
respondent all the evidence against him, and refusing to consider
respondent's proffered evidence, and the lack of due process
protections resulted in neither the respondent nor the complainant
receiving a fair hearing).
\1189\ Commenters cited: Doe v. Allee [University of Southern
California], 30 Cal. App. 5th 1036 (2019); Doe v. Claremont McKenna
Coll., 25 Cal. App. 5th 1055 (2018).
\1190\ Cf. Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 70
(1st Cir. 2019) (declining to require the same opportunity for
cross-examination as required by the Sixth Circuit but holding that
due process of law was satisfied if the university conducted
``reasonably adequate questioning'' designed to ferret out the
truth, if the university declined to grant students the right to
cross-examine parties and witnesses at a hearing).
\1191\ Commenters cited: Arishi v. Wash. State Univ., 196 Wash.
App. 878, 908 (2016); Liu v. Portland State Univ., 281 Or. App. 294,
307 (2016).
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Commenters opined that requiring a live hearing with cross-
examination for postsecondary institutions is perhaps the single most
important change in the proposed rules to ensure that determinations
are fair. Commenters referred to cross-examination as a ``game-
changer'' because currently many college and university processes
require parties to submit written questions in advance, to be asked by
a school official, which may or may not occur at a live hearing.
Commenters asserted that in numerous instances, college and university
administrators have refused to ask some or all of a party's submitted
questions, reworded a party's questions in ways that undermined the
question's effectiveness, ignored follow-up questions, and simply
refused to ask ``hard questions'' of parties even when evidence such as
text messages appeared to contradict a party's testimony. Commenters
argued that written questions are not an effective substitute for live
cross-examination because credibility can be determined only when
questions are asked in real time in the presence of parties and
decision-makers who can listen and observe how a witness answers
questions, and when immediate follow-up questions are permitted.
Commenters argued that cross-examination is necessary to allow the
decision-maker to
[[Page 30312]]
observe each witness answering questions that can bring out
contradictions and improbabilities in the witness's testimony.
Commenters cited Supreme Court criminal law cases discussing the
symbolic and practical value of cross-examination in the context of the
Sixth Amendment's Confrontation Clause.\1192\
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\1192\ Commenters cited: Coy v. Iowa, 487 U.S. 1012, 1017 (1988)
(stating that cross-examination has symbolic importance because
``there is something deep in human nature that regards face-to-face
confrontation between accused and accuser as essential to a fair
trial in a criminal prosecution'') (internal quotation marks and
citation omitted); id. at 1019 (noting the practical importance of
cross-examination because it ``is always more difficult to tell a
lie about a person to his [or her] face than behind his [or her]
back'') (internal quotation marks and citation omitted); Mattox v.
United States, 156 U.S. 237, 242-43 (1895) (cross-examination
provides the trier-of-fact opportunity to judge by the witness's
demeanor on the stand and ``the manner in which he gives his
testimony whether he is worthy of belief.'').
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Some commenters argued that despite other commenters' assumptions
that the proposed rules would allow a complainant to be aggressively or
abusively questioned by a respondent's advisor, it is unlikely that
campus officials will permit an advisor to question a party in an
inappropriate manner; for example, commenters asserted, under current
policies most universities only allow lawyers or other advisors to be
``potted plants'' in hearings and school officials enforce that potted-
plant policy, demonstrating that recipients are capable of controlling
advisors. One commenter asserted that universities, which are dedicated
to the free flow of information, will figure out an acceptable way for
cross-examination to occur so that campus adjudications can meet
generally accepted standards of due process. Several commenters
asserted that recipients should, and under the proposed rules would be
allowed to, adopt measures to prevent irrelevant, badgering questions
and ensure respectful treatment of parties and witnesses. Commenters
supported requiring cross-examination to be conducted by party advisors
because this will mean that the questioning will be left to
professionals, or at least to adults better attuned to the nuances of
these cases. Commenters asserted that concerns about aggressive
attorneys berating complainants are overblown, because attorneys and
even non-attorney advisors know better than to alienate the fact-
finder, which is what berating a complainant would do. Commenters
asserted that the proposed rules reach a balanced solution by allowing
cross-examination to determine credibility while disallowing direct
student-to-student questioning and permitting questioning to occur with
the parties in separate rooms.
Some commenters supported the cross-examination requirement based
on belief that confronting an accuser is a part of the fundamental
concept of the rule of law that should apply on college campuses. Some
commenters believed that cross-examination will change the ``kangaroo
court'' nature of campus Title IX proceedings that lacked basic due
process protections, and that asking complainants questions about the
allegations does not revictimize a complainant. Several commenters
expressed support for cross-examination in the context of belief that
the withdrawn 2011 Dear Colleague Letter, and/or the #MeToo movement,
have tilted too many colleges and universities to be predisposed to
believing young men guilty of sexual assault.
Many commenters supported cross-examination because of personal
experiences being accused of a Title IX violation without any
opportunity to confront the complainant, asserting that lack of cross-
examination allowed a complainant's version of events to go
unchallenged.
Many commenters supported cross-examination as an important part of
the proposed rules' restoration of due process and fairness that
distinguishes the United States from dictatorial regimes where to be
accused is the same as being proved guilty. Several commenters argued
that cross-examination is vital for finding the truth, which should be
the goal of any investigation, because cross-examination reveals a
witness's faulty memory or false testimony. Commenters asserted that
cross-examination allows the parties to make a searching inquiry to
uncover facts that may have been omitted, confused, or overstated.
Some commenters believed that cross-examination will reduce the
likelihood of false allegations being made or succeeding. One commenter
argued that regardless of whether false allegations happen infrequently
or frequently, every case must be considered individually using a
proper investigation process with cross-examination. One commenter
opposed the proposed rules as problematic and offensive to victims, but
supported the cross-examination provision because due process is an
inherent right in the United States. This commenter also supported
cross-examination because victims going through a criminal trial get
cross-examined, and even though false allegations are rare, where there
is one, it should be taken care of in accordance with due process.
A few commenters supported the cross-examination requirement
because full and fair adversarial procedures are likely to reduce bias
in decision making. One commenter quoted Supreme Court criminal law
decisions for the proposition that the adversarial ``system is premised
on the well-tested principle that truth--as well as fairness--is `best
discovered by powerful statements on both sides of the question.' ''
\1193\ Another commenter asserted that nothing can completely eliminate
sex or racial bias in a system but bias can be reduced by expanding the
evidence considered by decision-makers, such as by requiring a full
investigation and cross-examination.\1194\ One commenter asserted that
it is within the Department's jurisdiction to create regulations about
cross-examination and other procedures that reduce impermissible
implicit bias on the basis of sex stereotypes and unconscious sex-
bias.\1195\
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\1193\ Commenters cited: Penson v. Ohio, 488 U.S. 75, 84 (1988)
(quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified
Counsel?, 61 Am. Bar. Ass'n J. 569, 569 (1975)); United States v.
Cronic, 466 U.S. 648, 656 (1984) (describing the ``crucible of
meaningful adversarial testing''); Cal. v. Green, 399 U.S. 149, 158
(1970) (describing cross-examination as the ``greatest legal engine
ever invented for the discovery of truth'') (internal quotation
marks and citations omitted). Several commenters paraphrased the
``greatest legal engine ever invented for discovery of truth''
passage without citing to the Supreme Court case or the Wigmore
treatise from which it originates.
\1194\ Commenters cited: Stephen P. Klein et al., Race and
Imprisonment Decisions in California, 24 Science 812 (1990) (for the
proposition that most decisions after a full trial are not based on
using race as a proxy, but rather on evidence at trial, resulting in
racially fair decisions).
\1195\ Commenters cited: Maryland v. Craig, 497 U.S. 836, 846
(1990) (quoting Cal. v. Green, 399 U.S. 149, 158 (1970)) for the
proposition that when procedures typical to our adjudicative
processes, such as cross-examination, are introduced into university
grievance proceedings such procedures allow for the ``discovery of
the truth'' in a manner that reduces stereotyping.
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A few commenters supported cross-examination because both parties
need due process including the right to use cross-examination to
establish credibility so that each party has their stated facts
scrutinized to find the truth. Some commenters asserted that cross-
examination ensures a level of fairness that benefits all parties
involved in Title IX cases. A few commenters believed the proposed
rules, including the cross-examination requirement, provide a fair and
equal opportunity for both sides. One commenter argued that cross-
examination holds a great benefit to both parties and allows the
investigator and other staff on the case to hear both sides of the
story; another commenter stated there are two sides to every issue and
both sides must be questioned. One
[[Page 30313]]
commenter supported the cross-examination requirement and stated that
current, unfair procedures harm respondents who are women, and who are
gay or lesbian, as well as respondents who are men, giving examples
such as a young woman the commenter represented who was so drunk she
could not have consented to sex and yet was expelled because the male
filed with the Title IX office first. Several commenters asserted that
cross-examination is as beneficial for the recipient as for the parties
because the decision-maker has the opportunity to observe and judge the
credibility of parties and witnesses, thereby serving the recipient's
interest in reaching accurate determinations.
Another commenter argued that the opportunity to cross-examine
witnesses is a procedural protection that should not be controversial
given it is a bedrock principle of the American criminal justice system
designed to create a more reliable fact finding process. The commenter
believed that a reliable process is in the interest of all parties
including recipients, because greater reliability will lead to greater
acceptance of the legitimacy of the decisions. This commenter also
asserted that institutional opposition to basic notions of due process
has led to widespread mistrust of the decision-making processes of
Title IX offices, evidenced by the prevalence of Federal lawsuits
challenging Title IX decisions made by institutions. The commenter
argued that institutions must conform their Title IX procedures to
basic notions of due process to establish the legitimacy of their
decisions.
One commenter argued that it is unfair to a complainant not to be
able to cross-examine a respondent or witnesses. At least one commenter
argued that cross-examination will provide greater reliability, which
should encourage complainants to report harassment and further support
Title IX's objective of protecting the educational environment. One
commenter argued that giving respondents a full hearing with cross-
examination means that victims of ``contemptible rapists'' can exact
justice, and that even if answering questions about painful memories is
difficult it is worth it to make sure that rape accusations are not
approached lightly. Another commenter asserted that claiming that
having an accusation examined is too traumatic for a complainant
infantilizes complainants. Several commenters argued that even though
testifying about traumatic events is difficult and uncomfortable,
testimony from any party that is never questioned cannot be evaluated
for truthfulness.
Some commenters supported the proposed rules, and cross-examination
as the opportunity to test the credibility of claims, because,
commenters asserted, women reject the trampling of constitutional
rights in the name of women's rights. One commenter supported live
hearings and cross-examination conducted through advisors, including
attorneys, because students will have an opportunity to learn about how
misconduct allegations are factually examined and determined.
Some commenters supported Sec. 106.45(b)(6)(i) but requested that
the provision be expanded to expressly give parties the right to also
cross-examine any investigator or preparer of an investigative report,
because the entire grievance procedure is often based on the findings
in the investigative report and it is thus essential that the parties
be able to cross-examine the individuals who prepared the report to
probe how conclusions were reached and whether the report is credible.
Discussion: The Department appreciates commenters' support for the
requirement in Sec. 106.45(b)(6)(i) that postsecondary institutions
must hold live hearings with cross-examination conducted by party
advisors. The Department agrees with commenters who observed that
several appellate courts over the last few years have carefully
considered the value of cross-examination in high-stakes student
misconduct proceedings in colleges and universities and concluded that
part of a meaningful opportunity to be heard includes the ability to
challenge the testimony of parties and witnesses. The Department agrees
with commenters who noted that this conclusion has been reached by
courts both in the context of constitutional due process in public
institutions and a fair process in private institutions. The Department
agrees with commenters who observed that some States already provide
rights to a robust hearing and cross-examination under State APA laws,
demonstrating that the notion of live hearings and cross-examination is
not new or foreign to many postsecondary institutions. The Department
is aware that many postsecondary institutions have created disciplinary
systems for sexual misconduct issues that intentionally avoid live
hearings and cross-examination, due to concern about retraumatizing
sexual assault victims; however, the Department agrees with commenters
that in too many instances recipients who have refused to permit
parties or their advisors to conduct cross-examination and instead
allowed questions to be posed through hearing panels have stifled the
value of cross-examination by, for example, refusing to ask relevant
questions posed by a party, changing the wording of a party's question,
or refusing to allow follow-up questions.
The Department agrees with commenters that cross-examination serves
the interests of complainants, respondents, and recipients, by giving
the decision-maker the opportunity to observe parties and witnesses
answer questions, including those challenging credibility, thus serving
the truth-seeking purpose of an adjudication. The Department
acknowledges that Title IX grievance processes are not criminal
proceedings and thus constitutional protections available to criminal
defendants (such as the right to confront one's accuser under the Sixth
Amendment) do not apply in the educational context; however, the
Department agrees with commenters that cross-examination is a valuable
tool for resolving the truth of serious allegations such as those
presented in a formal complaint of sexual harassment. The Department
emphasizes that cross-examination that may reveal faulty memory,
mistaken beliefs, or inaccurate facts about allegations does not mean
that the party answering questions is necessarily lying or making
intentionally false statements. The Department's belief that cross-
examination serves a valuable purpose in resolving factual allegations
does not reflect a belief that false accusations occur with any
particular frequency in the context of sexual misconduct proceedings.
However, the degree to which any inaccuracy, inconsistency, or
implausibility in a narrative provided by a party or witness should
affect a determination regarding responsibility is a matter to be
decided by the decision-maker, after having the opportunity to ask
questions of parties and witnesses, and to observe how parties and
witnesses answer the questions posed by the other party.
The Department agrees with commenters that the truth-seeking
function of cross-examination can be achieved while mitigating any re-
traumatization of complainants because under the final regulations:
Cross-examination is only conducted by party advisors and not directly
or personally by the parties themselves; upon any party's request the
entire live hearing, including cross-examination, must occur with the
parties in separate rooms; questions about a complainant's prior sexual
behavior are barred subject to two limited exceptions; a party's
medical or psychological records can
[[Page 30314]]
only be used with the party's voluntary consent; \1196\ recipients are
instructed that only relevant questions must be answered and the
decision-maker must determine relevance prior to a party or witness
answering a cross-examination question; and recipients can oversee
cross-examination in a manner that avoids aggressive, abusive
questioning of any party or witness.\1197\
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\1196\ Section 106.45(b)(5)(i) (providing that a party's
treatment records can only be used in a grievance process with that
party's voluntary, written consent).
\1197\ Section 106.45(b) (introductory sentence as revised in
the final regulations provides that any provisions, rules, or
practices other than those required by Sec. 106.45 that a recipient
adopts as part of its grievance process for handling formal
complaints of sexual harassment as defined in Sec. 106.30, must
apply equally to both parties).
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The Department agrees with commenters that sex bias is a unique
risk in the context of sexual harassment allegations, where the case
often turns on plausible, competing factual narratives of an incident
involving sexual or sex-based interactions, and application of sex
stereotypes and biases may too easily become a part of the decision-
making process. The Department agrees with commenters that ensuring
fair adversarial procedures lies within the Department's authority to
effectuate the purpose of Title IX because such procedures will prevent
and reduce sex bias in Title IX grievance processes and better ensure
that recipients provide remedies to victims of sexual harassment.
The Department agrees with commenters that cross-examination
equally benefits complainants and respondents, and that both parties in
a high-stakes proceeding raising contested factual issues deserve equal
rights to fully participate in the proceeding. This ensures that the
decision-maker observes each party's view, perspective, opinion,
belief, and recollection about the incident raised in the formal
complaint of sexual harassment. The Department agrees with commenters
who note that any person can be a complainant, and any person can be a
respondent, regardless of a person's race, sexual orientation, gender
identity, or other personal characteristic, and each party, in every
case, deserves the opportunity to promote and advocate for the party's
unique interests.
The Department agrees with commenters that postsecondary-level
adjudications with live hearings and cross-examination will increase
the reality and perception by parties and the public that Title IX
grievance processes are reaching fair, accurate determinations, and
that robust adversarial procedures improve the legitimacy and
credibility of a recipient's process, making it more likely that no
group of complainants or respondents will experience unfair treatment
or unjust outcomes in Title IX proceedings (for example, where formal
complaints involve people of color, LGBTQ students, star athletes,
renowned faculty, etc.).
The Department agrees with commenters that cross-examination is as
powerful a tool for complainants seeking to hold a respondent
responsible as it is for a respondent, and that a determination of
responsibility reached after a robust hearing benefits victims by
removing opportunity for the respondent, the recipient, or the public
to doubt the legitimacy of that determination. The Department agrees
with commenters that there is no tension between providing strong
procedural protections aimed at discovering the truth about allegations
in each particular case, and upholding the rights of women (and every
person) to participate in education programs or activities free from
sex discrimination. The Department appreciates a commenter's belief
that observing a live hearing with cross-examination may provide
students with opportunity to learn about adjudicatory processes, though
the Department notes that the purpose of the Sec. 106.45 grievance
process is to reach factually reliable determinations so that sex
discrimination in the form of sexual harassment is appropriately
remedied by recipients so that no student's educational opportunities
are denied due to sex discrimination.
The Department understands commenters' point that often a case is
shaped and directed by the evidence gathered and summarized by the
investigator in the investigative report, including the investigator's
findings, conclusions, and recommendations. The Department emphasizes
that the decision-maker must not only be a separate person from any
investigator, but the decision-maker is under an obligation to
objectively evaluate all relevant evidence both inculpatory and
exculpatory, and must therefore independently reach a determination
regarding responsibility without giving deference to the investigative
report. The Department further notes that Sec. 106.45(b)(6)(i) already
contemplates parties' equal right to cross-examine any witness, which
could include an investigator, and Sec. 106.45(b)(1)(ii) grants
parties equal opportunity to present witnesses including fact and
expert witnesses, which may include investigators.
Changes: None.
Retraumatizing Complainants
Comments: Many commenters opposed Sec. 106.45(b)(6)(i) requiring
postsecondary institutions to hold live hearings with cross-examination
conducted by the parties' advisors. Commenters argued that cross-
examination is an adversarial, contentious procedure that will
revictimize, retraumatize, and scar survivors of sexual harassment;
that cross-examination will exacerbate survivors' PTSD (post-traumatic
stress disorder),\1198\ RTS (rape trauma syndrome), anxiety, and
depression; and cross-examination will interrogate victims like they
are the criminals, rub salt in victims' wounds, put rape victims
through a second rape, and essentially place the victim on trial when
victims are already trying to heal from a horrific experience.
Commenters argued that no other form of misconduct gives respondents
the right to ``put on trial'' the person accusing the respondent of
wrongdoing; one commenter argued that for instance, professors accusing
a student of cheating are not ``put on trial,'' a student accusing
another student of vandalism is not ``put on trial,'' so singling out
sexual misconduct complainants for a procedure designed to intimidate
and undermine the complainant's credibility heightens the misperception
that the credibility of sexual assault complainants is uniquely
suspect. Other commenters acknowledged that some recipients do use
cross-examination in non-sexual misconduct hearings because cross-
examination can be helpful in getting to the heart of the
[[Page 30315]]
allegations; these commenters asserted that Title IX hearings are
different due to the subject matter and relationships between the
parties and cross-examination is inappropriate in sexual misconduct
proceedings.
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\1198\ Commenters cited: Anke Ehlers & David M. Clark, A
Cognitive Model of Posttraumatic Stress Disorder, 38 Behavior
Research & Therapy 4 (2000); Mary P. Koss, Blame, Shame, and
Community: Justice Responses to Violence Against Women, 55 Am.
Psychol. 11 (2000); Sue Lees, Carnal Knowledge: Rape on Trial
(Hamish Hamilton 2002); Sue Lees & Jeanne Gregory, Attrition in Rape
and Sexual Assault Cases, 36 British J. of Criminology 1 (1996);
Amanda Konradi, ``I Don't Have To Be Afraid of You'': Rape
Survivors' Emotion Management in Court, 22 Symbolic Interaction 1
(1999); Venezia Kingi & Jan Jordan, Responding to Sexual Violence:
Pathways to Recovery, Wellington: Ministry of Women's Affairs
(2009); Mary P. Koss et al., Campus Sexual Misconduct: Restorative
Justice Approaches to Enhance Compliance with Title IX Guidance, 15
Trauma Violence & Abuse 3 (2014); Fiona Mason & Zoe Lodrick,
Psychological Consequences of Sexual Assault, 27 Best Practice &
Research Clinical Obstetrics & Gynecology 1 (2013); National Center
on Domestic Violence, Trauma & Mental Health, Representing Domestic
Violence Survivors Who Are Experiencing Trauma and Other Mental
Health Challenges: A Handbook for Attorneys (2011); Kaitlin Chivers-
Wilson, Sexual Assault and Posttraumatic Stress Disorder: A Review
of The Biological, Psychological and Sociological Factors and
Treatments, 9 McGill J. of Med.: MJM: An Int'l Forum for the
Advancement of Medical Sciences by Students 2 (2006).
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Commenters argued that fear of undergoing such a retraumatizing
experience will chill reporting of sexual harassment and cause more
victims to stay in the shadows because survivors will have no non-
traumatic options in the wake of sexual violence.\1199\ Commenters
asserted that coming forward is hard enough for victims because often
the trauma has resulted in nightmares, intrusive thoughts, inability to
concentrate, and hypervigilance, and the prospect of facing grueling,
retraumatizing cross-examination will result in even fewer students
coming forward.\1200\ Commenters argued that reporting will be
especially chilled with respect to claims against faculty members,
where a power differential already exists.
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\1199\ Many commenters cited to information regarding low rates
of reporting of sexual harassment such as the data noted in the
``Reporting Data'' subsection of the ``General Support and
Opposition'' section of this preamble, in support of arguments that
cross-examination will further reduce rates of reporting. Commenters
also cited: Joanne Belknap, Rape: Too Hard to Report and Too Easy to
Discredit Victims, 16 Violence Against Women 12 (2010); Suzanne B.
Goldberg, Keep Cross-examination Out of College Sexual-Assault
Cases, Chronicle of Higher Education (Jan. 10, 2019).
\1200\ Commenters cited: Judith Lewis Herman, Justice From the
Victim's Perspective, 11 Violence Against Women 5 (2005) for the
proposition that cross-examination is inherently retraumatizing and
can trigger vivid memories forming one of the ``psychological
barriers that discourage victim participation[.]'' Commenters also
cited: Gregory Matoesian, Reproducing Rape: Domination through Talk
in the Courtroom (Univ. of Chicago Press 1993); Michelle J.
Anderson, Women Do Not Report the Violence They Suffer: Violence
Against Women and the State Action Doctrine, 46 Vill. L. Rev. 907,
932, 936-37 (2001); Tom Lininger, Bearing the Cross, 74 Fordham L.
Rev. 1353, 1357 (2005); Anoosha Rouhanian, A Call for Change: The
Detrimental Impacts of Crawford v. Washington on Domestic Violence
and Rape Prosecutions, 37 Boston Coll. J. of L. & Social Justice 1
(2017).
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Commenters believed cross-examination creates secondary
victimization, which commenters referred to as a result of interacting
with community service providers who engage in victim-blaming
attitudes.\1201\ Some commenters believed it is cruel to let victims be
cross-examined by the person who committed the assault, or to force a
victim to be face-to-face with the perpetrator. Some commenters
believed that a public hearing where a victim must be cross-examined
would be severely traumatizing.
---------------------------------------------------------------------------
\1201\ Commenters cited to information regarding secondary
victimization and institutional betrayal such as the data noted in
the ``Commonly Cited Sources'' subsection of the ``General Support
and Opposition'' section of this preamble, including, for example,
Rebecca Campbell, Survivors' Help-Seeking Experiences With the Legal
and Medical Systems, 20 Violence & Victims 1 (2005). Commenters also
cited: Jim Parsons & Tiffany Bergin, The Impact of Criminal Justice
Involvement on Victims Mental Health, 23 Journal of Traumatic Stress
2 (2010).
---------------------------------------------------------------------------
Commenters asserted that anyone taken advantage of by sexual
harassment should be able to voice that experience without fear of a
traumatizing court case. Commenters argued that subjecting a victim
courageous enough to come forward to the re-traumatization of cross-
examination is an invasion of the victim's right to privacy and safety.
Commenters asserted that as survivors, they have experienced stress,
anxiety, nausea, and fear simply from passing by their attackers, and
the thought of being cross-examined near their attacker makes these
commenters believe they would not be able to speak at all due to fear,
would feel permanently traumatized, would drop out of school, or would
even contemplate suicide.\1202\ Commenters shared personal experiences
feeling traumatized by cross-examination in Title IX proceedings,
stating that even where a complainant won the case, the experience of
cross-examination was so mentally and emotionally taxing that
complainants suffered years of mental health treatment, felt unable to
perform academically, or dropped out of school.
---------------------------------------------------------------------------
\1202\ Commenters cited: Amelia Gentleman, Prosecuting Sexual
Assault: ``Raped All Over Again,'' The Guardian (Apr. 13, 2013) for
the story of a woman who committed suicide shortly after being
cross-examined in a criminal trial in England.
---------------------------------------------------------------------------
Some commenters supported reform of school discipline procedures
and agreed that complainants and respondents should be treated the same
when it comes to procedural rights including a right of cross-
examination, but argued that recipients should be allowed discretion to
decide whether, or how, to incorporate cross-examination into Title IX
grievance processes so long as the decision applies equally to both
parties, and that it is intrusive and myopic for the Department to
unilaterally impose procedures onto sexual misconduct processes,
especially in a way that, in the commenters' views, tilts the system
against victims of sexual harassment.
Discussion: The Department believes that cross-examination as
required under Sec. 106.45(b)(6)(i) is a necessary part of a fair,
truth-seeking grievance process in postsecondary institutions, and that
these final regulations apply safeguards that minimize the traumatic
effect on complainants. We have revised Sec. 106.45(b)(6)(i) to
clearly state that the entire live hearing (and not only cross-
examination) must occur with the parties in separate rooms, at the
request of any party; that cross-examination must never be conducted by
a party personally; and that only relevant cross-examination questions
must be answered and the decision-maker must determine the relevance of
a cross-examination question before a party or witness answers.
Recipients may adopt rules that govern the conduct and decorum of
participants at live hearings so long as such rules comply with these
final regulations and apply equally to both parties.\1203\ We
understand that cross-examination is a difficult and potentially
traumatizing experience for any person, perhaps especially a
complainant who must answer questions about sexual assault allegations.
These final regulations aim to ensure that the truth-seeking value and
function of cross-examination applies for the benefit of both parties
while minimizing the discomfort or traumatic impact of answering
questions about sexual harassment.
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\1203\ As revised, the introductory sentence of Sec. 106.45(b)
provides: ``Any provisions, rules, or practices other than those
required by this section that a recipient adopts as part of its
grievance process for handling formal complaints of sexual
harassment as defined in Sec. 106.30, must apply equally to both
parties.''
---------------------------------------------------------------------------
While the Department acknowledges that complainants may find a
cross-examination procedure emotionally difficult, the Department
believes that a complainant can equally benefit from the opportunity to
challenge a respondent's consistency, accuracy, memory, and credibility
so that the decision-maker can better assess whether a respondent's
narrative should be believed. The complainant's advisor will conduct
the cross-examination of the respondent and, thus, the complainant will
not be retraumatized by having to personally question the respondent.
The Department disagrees that cross-examination places a victim (or any
party or witness) ``on trial'' or constitutes an interrogation; rather,
cross-examination properly conducted simply constitutes a procedure by
which each party and witness answers questions posed from a party's
unique perspective in an effort to advance the asking party's own
interests. The Department disagrees that cross-examination implies that
sexual assault complainants are uniquely unreliable; rather, to the
extent that cross-examination implies anything about credibility, the
Department notes that by giving both parties equal cross-examination
rights, the final regulations contemplate that a complainant's
allegations, and a respondent's denials,
[[Page 30316]]
equally warrant probes for credibility and truthfulness.
The Department appreciates commenters' observations that some
recipients do not use live hearings or cross-examination for any form
of misconduct charges while other recipients use hearings and cross-
examination for some types of misconduct but not for sexual misconduct.
The Department does not opine through these final regulations as to
whether cross-examination is beneficial for non-sexual harassment
misconduct allegations because the Department's focus in these final
regulations are the procedures most likely to reach reliable outcomes
in the context of Title IX sexual harassment. The Department agrees
with commenters who note that sexual harassment allegations present
unique circumstances, but disagrees that the subject matter or
relationships between parties involved in sexual harassment allegations
make cross-examination less useful than for other types of misconduct
allegations. Rather, the Department believes that precisely because the
subject matter involves sensitive, personal matters presenting high
stakes and long-lasting consequences for both parties, robust
procedural rights for both parties are all the more important so that
each party may fully, meaningfully put forward the party's viewpoints
and beliefs about the allegations and the case outcome.
The Department acknowledges that predictions of harsh, aggressive,
victim-blaming cross-examination may dissuade complainants from
pursuing a formal complaint out of fear of undergoing questioning that
could be perceived as an interrogation. However, recipients retain
discretion under the final regulations to educate a recipient's
community about what cross-examination during a Title IX grievance
process will look like, including developing rules and practices (that
apply equally to both parties) \1204\ to oversee cross-examination to
ensure that questioning is relevant, respectful, and non-abusive. We
have revised Sec. 106.45(b)(6)(i) to specifically state that only
relevant cross-examination questions must be answered and the decision-
maker must determine the relevance of a cross-examination question
before the party of witness answers. We have revised Sec.
106.45(b)(1)(iii) to specifically require decision-makers to be trained
on conducting live hearings and determining relevance (including the
non-relevance of questions and evidence about a complainant's prior
sexual history). The Department also notes that recipients must comply
with obligations under applicable disability laws, and that the final
regulations contemplate that disability accommodations (e.g., a short-
term postponement of a hearing date due to a party's need to seek
medical treatment for anxiety or depression) may be good cause for a
limited extension of the recipient's designated, reasonably prompt time
frame for the grievance process.\1205\
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\1204\ The introductory sentence of Sec. 106.45(b) expressly
permits recipients to adopt rules for the Title IX grievance process
so long as such rules are applied equally to both parties.
\1205\ Section 106.45(b)(1)(v).
---------------------------------------------------------------------------
The Department understands that victims of sexual violence often
experience PTSD and other significant negative impacts, and that
participating in a grievance process may exacerbate these impacts. The
Department believes that the final regulations appropriately provide a
framework under which a recipient must offer supportive measures to
each complainant (without waiting for a factual adjudication of the
complainant's allegations),\1206\ and provide remedies for a
complainant where the respondent is found responsible following a fair
grievance process.\1207\ Complainants can receive supportive measures
from a recipient, and each complainant can decide whether, in addition
to supportive measures, participating in a grievance process is a step
the complainant wants to take.\1208\ In this manner, these final
regulations respect the complainant's autonomy. The Department
therefore disagrees with commenters who asserted that under the final
regulations complainants will have ``no non-traumatic options'' and
will feel deterred from reporting; complainants can report sexual
harassment and receive supportive measures without even filing a formal
complaint, much less participating in a grievance process or undergoing
cross-examination. This option for reporting exists regardless of the
identity of the respondent (e.g., whether the respondent is an
employee, faculty member, or student), and therefore all complainants
have the same non-traumatic reporting option regardless of any real or
perceived power differential between the complainant and respondent.
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\1206\ Section 106.44(a) (recipients must offer supportive
measures to a complainant, and the Title IX Coordinator must
promptly contact the complainant to discuss the availability of
supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal
complaint, and explain to the complainant the process for filing a
formal complaint).
\1207\ Section 106.45(b)(1)(i).
\1208\ Section 106.71 (prohibiting retaliation for exercise of
rights under Title IX and specifically protecting any individual's
right to not participate in a grievance process).
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The Department disagrees that including cross-examination as a
procedure in the grievance process constitutes institutional betrayal.
Cross-examination does not inherently involve victim-blaming attitudes,
and as noted above, recipients retain wide discretion under the final
regulations to adopt rules and practices designed to ensure that cross-
examination occurs in a respectful, non-abusive manner. Further, the
reason cross-examination must be conducted by a party's advisor, and
not by the decision-maker or other neutral official, is so that the
recipient remains truly neutral throughout the grievance process. To
the extent that a party wants the other party questioned in an
adversarial manner in order to further the asking party's views and
interests, that questioning is conducted by the party's own advisor,
and not by the recipient. Thus, no complainant (or respondent) need
feel as though the recipient is ``taking sides'' or otherwise engaging
in cross-examination to make a complainant feel as though the recipient
is blaming or disbelieving the complainant.
The Department appreciates the opportunity to clarify that contrary
to the fears of some commenters, Sec. 106.45(b)(6)(i) prohibits any
complainant from being questioned directly by the respondent; rather,
only party advisors can conduct cross-examination. We have revised
Sec. 106.45(b)(6)(i) specifically to state that cross-examination must
occur ``directly, orally, and in real-time'' by the party's advisor and
``never by a party personally.'' Similarly, Sec. 106.45(b)(6)(i) is
revised to require recipients to hold the entire live hearing (and not
just cross-examination) with the parties in separate rooms (facilitated
by technology) so that the parties need never be face-to-face, upon a
party's request. Similarly, the Department notes that the live hearing
is not a ``public'' hearing, and the final regulations add Sec. 106.71
that requires recipients to keep party and witness identities
confidential except as permitted by law and as needed to conduct an
investigation or hearing.
The Department understands commenters' concerns that sexual
harassment victims have already suffered the underlying conduct and
that participating in a grievance process may be difficult for victims.
However, before allegations may be treated as fact (i.e., before a
complainant can be
[[Page 30317]]
deemed a victim of particular conduct by a particular respondent), a
fair process must reach an accurate outcome, and in situations that
involve contested allegations, procedures designed to discover the
truth by permitting opposing parties each to advocate for their own
viewpoints and interests are most likely to reach accurate outcomes
based on facts and evidence rather than assumptions and bias.
The Department disagrees that adjudication via a live hearing with
cross-examination invades a complainant's privacy or risks a
complainant's safety. The final regulations revise Sec. 106.45(b)(5)
to ensure that recipients do not access or use any party's treatment
records without obtaining the party's written consent, thus limiting
the type of sensitive, private information that becomes part of a Sec.
106.45 grievance process without a party's consent. Further, Sec.
106.45(b)(5)(vi) limits the exchange of evidence from an investigation
only to evidence directly related to the allegations in the formal
complaint. Additionally, Sec. 106.45(b)(6)(i) deems questions and
evidence regarding a complainant's prior sexual behavior or sexual
predisposition to be irrelevant, with specified exceptions, to further
protect complainants' privacy, and upon a party's request the entire
live hearing must be held with the parties located in separate rooms.
The Department disagrees that an adjudication process that includes a
live hearing with cross-examination jeopardizes any party's safety,
particularly with the privacy and anti-retaliation provisions
referenced above, and the Department further notes that safety-related
measures remain available under the final regulations including the
ability for a recipient to impose no-contact orders on the parties
under Sec. 106.30 defining ``supportive measures,'' or to remove a
respondent on an emergency basis under Sec. 106.44(c). Further, a
complainant also retains the ability to obtain an order of protection
(e.g., a restraining order) from a court of law.
The Department understands commenters' concerns about the prospect
of cross-examination, and appreciates commenters' personal experiences
with the difficulties of cross-examination, but reiterates that cross-
examination essentially consists of questions posed from one party's
perspective to advance the asking party's views about the allegations
at issue, that recipients retain discretion to control the conduct of
cross-examination in a manner that ensures that no party is treated
abusively or disrespectfully, that only relevant cross-examination
questions must be answered, and that either party may demand that the
live hearing occur with the parties in separate rooms. Based on
comments from many recipients, the Department believes that recipients
desire to treat all their students and employees with dignity and
respect, and that recipients will therefore conduct hearings in a
manner that keeps the focus on respectful questioning regarding the
allegations at issue while permitting each party (through advisors) to
advocate for the party's own interests before the decision-maker.
The Department appreciates commenters' support for ensuring that
both parties have equal rights with respect to cross-examination, but
disagrees that Sec. 106.45(b)(6)(i) is intrusive or myopic because,
for reasons explained throughout this preamble, the Department has
determined that in the context of resolution of Title IX sexual
harassment allegations the procedures in Sec. 106.45 constitute those
procedures necessary to ensure consistent, predictable application of
Title IX rights, and does not believe that cross-examination in the
postsecondary context tilts the system against sexual harassment
victims. An equal right of cross-examination benefits complainants as
well as respondents, by permitting complainants to participate in
advocating for their own view of the case so that a decision-maker is
more likely to reach an accurate determination, and where a respondent
is found responsible the victim will receive remedies designed to
restore or preserve equal access to education.
Changes: We have revised Sec. 106.45(b)(6)(i) to state that cross-
examination must occur ``directly, orally, and in real-time'' by a
party's advisor ``and never by a party personally'' and that upon a
party's request the entire live hearing (not only cross-examination)
must occur with the parties located in separate rooms (with technology
enabling participants to see and hear each other). We have further
revised Sec. 106.45(b)(6)(i) to state that only relevant cross-
examination questions must be answered, and the decision-maker must
determine the relevance of a cross-examination or other question before
the party or witness answers the question (and explain any decision to
exclude a question as not relevant). The final regulations add Sec.
106.71 prohibiting retaliation and providing in relevant part that the
recipient must keep confidential the identity of any individual who has
made a report or complaint of sex discrimination, including any
individual who has made a report or filed a formal complaint of sexual
harassment, any complainant, any individual who has been reported to be
the perpetrator of sex discrimination, any respondent, and any witness,
except as may be permitted by the FERPA statute or regulations, as
required by law, or to carry out the purposes of 34 CFR part 106,
including the conduct of any investigation, hearing, or judicial
proceeding arising thereunder.
Reducing Truth-Seeking
Comments: Many commenters asserted that cross-examination would
mean that complainants are questioned via verbal attacks on the
complainant's character rather than sensitively in a respectful manner
designed to aid the fact-finding process.\1209\ Commenters argued that
in criminal cases, it is accepted that the defense counsel's job to put
the prosecutor's case in the worst possible light regardless of the
truth and to impeach an adverse witness even if the defense attorney
believes the witness is telling the truth.\1210\
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\1209\ Commenters cited: Abbe Smith, Representing Rapists: The
Cruelty of Cross-Examination and Other Challenges for a Feminist
Criminal Defense Lawyer, 53 Am. Crim. L. Rev. 255, 290 (2016)
(noting that a defense attorney recently acknowledged, ``Especially
when the defense is fabrication or consent--as it often is in adult
rape cases--you have to go at the witness. There is no way around
this fact. Effective cross-examination means exploiting every
uncertainty, inconsistency, and implausibility. More, it means
attacking the witness's very character.'') (emphasis in original).
\1210\ Commenters cited: United States v. Wade, 388 U.S. 218,
257-58 (1967) (White, J., dissenting in part and concurring in part)
for the proposition that Justice Byron White explained five years
before Title IX was enacted that cross-examination ``in many
instances has little, if any, relation to the search for the
truth.'' Instead, at least in criminal cases, it is accepted that
defense counsel's job is ``to put the State's case in the worst
possible light, regardless of what he thinks or knows to be the
truth'' and to ``cross-examine a prosecution witness, and impeach
him if he can, even if he thinks the witness is telling the truth.''
Id. Commenters also cited: Louise Ellison, The Mosaic Art: Cross-
Examination and the Vulnerable Witness, 21 Legal Studies 353, 366,
368-369, 373-375 (2001); John Spencer, ``Conclusions,'' in Children
and Cross-Examination: Time to Change the Rules? 189 (John Spencer &
Michael Lamb eds., Hart Publishing 2012).
---------------------------------------------------------------------------
Commenters argued that cross-examinations are just emotional
beatings to twist survivors' perception and memory and lead them to
mistakenly admit to or believe in false information, make the survivor
feel insecure about what really happened, challenge the legitimacy of
the survivor's experience, and therefore lead to an unjust outcome.
Commenters argued that cross-examination took the place of torture in
our legal system and
[[Page 30318]]
remains a brutal exercise.\1211\ Commenters stated that when working
with victims as clients, victims' number one fear is often cross-
examination whether in a civil court or criminal court; while they do
not fear the truth, they fear defense lawyers' attempts to confuse them
and blame them for not remembering every single part of the story even
when it was drug or alcohol induced, and they fear telling their story
to near strangers and still not getting the justice and safety they
need. Commenters argued that cross-examination is designed to engage in
DARVO (deny, attack, reverse victim/offender) strategies that harm
victims. Commenters argued that even cases that seem to be ``he said/
she said'' often involve more evidence than just the parties'
statements,\1212\ so cross-examination is unnecessary and may
disincentivize recipients from conducting a full investigation that
uncovers relevant evidence.
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\1211\ Commenters cited: David Luban, Partisanship, Betrayal and
Autonomy in the Lawyer-Client Relationship: A Reply to Stephen
Ellmann, 90 Colum. L. Rev. 1004, 1027-28 (1990) (examining the legal
ethics of cross-examinations in rape cases, even with rape shield
laws in place) (``To make it seem plausible that the victim
consented and then turned around and charged rape, the lawyer must
play to the jurors' deeply rooted cultural fantasies about feminine
sexual voracity and vengefulness. All the while, without seeming
like a bully, the advocate must humiliate and browbeat the
prosecutrix, knowing that if she blows up she will seem less
sympathetic, while if she pulls inside herself emotionally she loses
credibility as a victim. Let us abbreviate all of this simply as
`brutal cross-examination.' ''). Commenters also cited: 5 John Henry
Wigmore, Evidence in Trials at Common Law Sec. 1367 (James H.
Chabourn ed., Little Brown 1974) (Wigmore explained that ``in more
than one sense'' cross-examination took ``the place in our system
which torture occupied in the medieval system of the civilians.'').
\1212\ Commenters cited: Eliza Lehner, Rape Process Templates: A
Hidden Cause of the Underreporting of Rape, 29 Yale J. of L. &
Feminism 1 (2018).
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Many commenters believed the negative results of cross-examination
would be heightened by the proposed rules' requirement that cross-
examination be conducted by a party's advisor, who could be a
respondent's angry parent, fraternity brother, roommate, or other
person untrained in conducting cross-examination and holding severe
bias against the complainant. Some commenters asserted that cross-
examination by advisors would turn misconduct hearings into unregulated
kangaroo courts where untrained, unskilled non-attorney advisors are
``playing attorney'' yet eliciting little or no useful information.
Commenters argued that in court trials, the parties themselves feel
constrained to come across to judges and juries as nice, earnest, and
sympathetic, while attorneys feel free to ``take the gloves off'' when
cross-examining the opposing party and the same dynamic would prevail
in college disciplinary hearings.
Some commenters asserted that telling complainants that they will
be cross-examined by a lawyer or a respondent's parent, roommate, or
fraternity brother will make the complainant feel as though the
university the complainant should be able to trust is throwing the
complainant to proverbial wolves. One commenter recounted being
questioned by a respondent's advisor of choice and asserted that the
advisor spoke to the commenter in a disempowering, blaming, and
condescending way, fueling the commenter's feelings of being
traumatized and harming the commenter's ability to function as a
student. Some commenters asserted that allowing questioning to take
place through an advisor removes accountability students should have
for their own actions and will result in students blaming their
advisors for poor conduct during a hearing.
Many commenters opposed the cross-examination requirement because
the proposed rules do not guarantee procedural protections that
accompany cross-examination in criminal or civil trials, such as the
right to representation by counsel, rules of evidence,\1213\ and a
judge ruling on objections. Commenters argued that cross-examination is
only potentially useful for discovering the truth when used by skilled
lawyers in courtrooms overseen by experienced judges, and that in the
hands of untrained, inexperienced advisors will be only a tool to trap,
harass, and blame complainants rather than discern truth about
allegations.\1214\ Commenters asserted that colleges will not
adequately protect parties from inappropriate or irrelevant questions,
so that cross-examination will intrude into irrelevant details about
victims' private lives, reputations, and trustworthiness. Commenters
argued that institutions have no power to hold an attorney in contempt,
and attorneys are trained to be very aggressive, and thus institutions
will not be able to control overly hostile, abusive party advisors who
are attorneys. Commenters stated that school administrators are ill
equipped to make nuanced legal determinations about the relevant scope
of questions and answers, and that schools will be too nervous to act
to control lawyers, who will run the show and not respect even the few
limits placed on cross-examination.
---------------------------------------------------------------------------
\1213\ Commenters cited: Flaim v. Med. Coll. of Ohio, 418 F.3d
629, 635 (6th Cir. 2005) for the proposition that Federal or State
rules of evidence do not apply to college disciplinary proceedings.
\1214\ Commenters cited: Francis P. Karam, The Truth Engine:
Cross-Examination Outside the Box (Themistocles Books 2018)
(describing cross-examination as a tool requiring great skill and
experience for lawyers to utilize well); Association of Title IX
Administrators (ATIXA), ATIXA Position Statement on Cross-Examining:
The Urge to Transform College Conduct Proceedings into Courtrooms 1
(Oct. 5, 2018) (without the complex procedural and evidentiary rules
that apply to cross-examination in courtrooms, in a college setting
``emotional or verbal meltdown is considerably more likely than
effective probing for truth'').
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Commenters asserted that even in court where judges oversee defense
attorneys, survivors describe cross-examination as the most distressing
part of their experience within the criminal justice system even when
the survivors report feeling reasonably able to give accurate
evidence.\1215\ Commenters asserted that most rape victims face defense
lawyer tactics like interrupting, asking for only yes-no answers,
asking illogical questions, grilling on minute details of the incident,
and asking irrelevant personal questions.\1216\ Commenters argued that
cross-examination outside a controlled courtroom setting will subject
victims to intrusive, retraumatizing questions designed to humiliate,
intimidate, and blame them, with no recourse as a victim would have
being questioned in front of a judge, thereby weaponizing university
proceedings against victims. At least one commenter argued that even in
criminal settings, in-person cross-examination is not always required;
under some laws vulnerable witnesses such as children are allowed to
pre-record evidence in advance rather than testify live.\1217\
---------------------------------------------------------------------------
\1215\ Commenters cited: Mark R. Kebbell et al., Rape Victims'
Experiences of Giving Evidence in English Courts: A Survey, 14
Psychiatry, Psychol. & L. 1 (2007); Shana L. Maier, I Have Heard
Horrible Stories . . . : Rape Victim Advocates' Perceptions of the
Revictimization of Rape Victims by the Police and Medical System, 14
Violence Against Women 7 (2008) for the proposition that rape
victims are often traumatized by seeking help from the health care
system too, but traumatic processes should only be used when
necessary--e.g., when medical care is needed, or when a criminal
trial requires cross-examination.
\1216\ Commenters cited: Amanda Konradi, Taking the Stand: Rape
Survivors and the Prosecution of Rapists (Praeger Publishers (2007);
American Bar Association Center of Children and the Law, Handbook On
Questioning Children--A Linguistic Perspective 48-49 (2d ed. 1999);
Annie Cossins, Cross-examination in Child Sexual Assault Trials:
Evidentiary Safeguard or Opportunity to Confuse, 33 Melbourne L.
Rev. 1, 78-79 (2009) (quoting and summarizing Mark Brennan, The
Discourse of Denial: Cross-examining Child Victim Witnesses, 23
Journal of Pragmatics 1 (1995)).
\1217\ Commenters cited: Elizabeth McDonald & Yvette Tinsley,
Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses:
Current Proposals, Issues and Challenges, Victoria Univ. of
Wellington L. Rev. (July 2, 2012) (forthcoming Victoria University
of Wellington Legal Research Paper No. 2/2011).
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[[Page 30319]]
Discussion: The Department is aware that the perception, and in
some circumstances the reality, of cross-examination in sexual assault
cases has felt to victims like an emotional beating under which a
skilled defense lawyer tries to twist a survivor's words, question the
survivor's experience, or convince a fact-finder to find the defense
lawyer's client is innocent by blaming the victim for the sexual
assault or discrediting the victim with irrelevant character
aspersions. The Department reiterates, however, that the essential
function of cross-examination is not to embarrass, blame, humiliate, or
emotionally berate a party, but rather to ask questions that probe a
party's narrative in order to give the decision-maker the fullest view
possible of the evidence relevant to the allegations at issue. The
Department disagrees with commenters' assertion that cross-examination
is the equivalent of torture; while commenters noted Wigmore's
observation that cross-examination has taken the place that torture
historically occupied in civil law systems (as opposed to our common
law system), such an observation implies that cross-examination differs
from torture and is the enlightened, humane manner of testing a
witness's testimony. The Department purposefully designed these final
regulations to allow recipients to retain flexibility to adopt rules of
decorum that prohibit any party advisor or decision-maker from
questioning witnesses in an abusive, intimidating, or disrespectful
manner.
While the Department understands commenters' concerns that cross-
examination has in some situations utilized DARVO strategies, cross-
examination does not inherently rely on or necessitate DARVO
techniques, and recipients retain discretion to apply rules designed to
ensure that cross-examination remains focused on relevant topics
conducted in a respectful manner. Recipients are in a better position
than the Department to craft rules of decorum best suited to their
educational environment. To emphasize that cross-examination must focus
only on questions that are relevant to the allegations in dispute, we
have revised Sec. 106.45(b)(6)(i) to state that only relevant cross-
examination or other questions may be asked of a party or witness, and
before a party or witness answers a cross-examination question the
decision-maker must determine whether the question is relevant (and
explain a decision to exclude a question as not relevant).\1218\
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\1218\ We have also revised Sec. 106.45(b)(1)(iii) to
specifically require that decision-makers are trained on issues of
relevance, including application of the ``rape shield'' protections
in Sec. 106.45(b)(6).
---------------------------------------------------------------------------
The Department further reiterates that the tool of cross-
examination is equally as valuable for complainants as for respondents,
because questioning that challenges a respondent's narrative may be as
useful for a decision-maker to reach an accurate determination as
questioning that challenges a complainant's narrative. The Department
agrees with commenters that even so-called ``he said/she said'' cases
often involve evidence in addition to the parties' respective
narratives, and the Sec. 106.45 grievance process obligates recipients
to bear the burden of gathering evidence and to objectively evaluate
all relevant evidence, both inculpatory and exculpatory, including the
parties' own statements as well as other evidence. The Department
disagrees that cross-examination disincentivizes recipients from
conducting a full investigation that uncovers all relevant evidence, in
part because Sec. 106.45 obligates recipients to gather relevant
evidence, and in part because cross-examination occurs at the end of
the grievance process such that the parties have already had an
opportunity to inspect and review the evidence collected by the
recipient.
The Department acknowledges commenters' concerns that under Sec.
106.45(b)(6)(i) cross-examination is conducted by party advisors, and
the final regulations do not require a party's advisor of choice to be
an attorney, nor may a recipient restrict a party's choice of advisor,
resulting in scenarios where a party's advisor may be the party's
friend or relative or other person who may not be trained or
experienced in conducting cross-examination. Regardless of the
identity, status, or profession of a party's advisor of choice, a
recipient retains discretion under the final regulations to apply rules
at a live hearing that require participants to refrain from engaging in
abusive, aggressive behavior. Further, regardless of who serves as a
party's advisor, recipients are responsible for ensuring that only
relevant cross-examination and other questions are asked, and decision-
makers must determine the relevance of each cross-examination question
before a party or witness answers. Thus, recipients retain the ability
and responsibility to ensure that hearings in a Sec. 106.45 grievance
process are in no way ``kangaroo courts'' and instead function as
truth-seeking processes.
The Department recognizes that party advisors may be, but are not
required to be, attorneys and thus in some proceedings cross-
examination on behalf of one or both parties will be conducted by non-
lawyers who may be emotionally attached to the party whom they are
advising. However, the Department believes that requiring cross-
examination to be conducted by party advisors is superior to allowing
parties to conduct cross-examination themselves; with respect to
complainants and respondents in the context of sexual harassment
allegations in an education program or activity, the strictures of the
Sixth Amendment do not apply. The Department believes that having
advisors as buffers appropriately prevents personal confrontation
between the parties while accomplishing the goal of a fair, truth-
seeking process. Precisely because a Title IX grievance process is
neither a civil nor criminal proceeding in a court of law, the
Department clarifies here that conducting cross-examination consists
simply of posing questions intended to advance the asking party's
perspective with respect to the specific allegations at issue; no legal
or other training or expertise can or should be required to ask factual
questions in the context of a Title IX grievance process. Thus, the
Department disagrees that non-lawyer party advisors will be ``playing
attorney.'' The Department notes that a recipient is free to explain to
complainants (and respondents) that the recipient is required by these
Title IX regulations to provide cross-examination opportunities. The
final regulations do not prevent a recipient from adopting rules of
decorum for a hearing to ensure respectful questioning, and thus
recipients may re-assure parties that the recipient is not throwing a
party to the proverbial wolves by conducting a hearing designed to
resolve the allegations at issue.
The Department appreciates commenters who described experiences
being questioned by party advisors as feeling like the advisor asked
questions in a disempowering, blaming, and condescending way; however,
the Department notes that such questioning may feel that way to the
person being questioned by virtue of the fact that cross-examination is
intended to promote the perspective of the opposing party, and this
does not necessarily mean that the questioning was irrelevant or
abusive. The Department disagrees that allowing questioning to take
place through an advisor removes
[[Page 30320]]
accountability students should have for their own actions. Under the
final regulations, the parties themselves retain significant control
and responsibility for their own decisions; the role of an advisor is
to assist and advise the party. The Department does not agree that the
final regulations encourage students to blame their advisors for poor
conduct during a hearing; the final regulations do not preclude a
recipient from enforcing rules of decorum that ensure all participants,
including parties and advisors, participate respectfully and non-
abusively during a hearing. If a party's advisor of choice refuses to
comply with a recipient's rules of decorum (for example, by insisting
on yelling at the other party), the recipient may require the party to
use a different advisor. Similarly, if an advisor that the recipient
provides refuses to comply with a recipient's rules of decorum, the
recipient may provide that party with a different advisor to conduct
cross-examination on behalf of that party. This incentivizes a party to
work with an advisor of choice in a manner that complies with a
recipient's rules that govern the conduct of a hearing, and
incentivizes recipients to appoint advisors who also will comply with
such rules, so that hearings are conducted with respect for all
participants.
The Department understands that cross-examination in a Title IX
grievance process is not the same as cross-examination in a civil or
criminal court, that a Sec. 106.45 grievance process need not be
overseen by a judge, and that party advisors need not be attorneys.
However, the Department believes that recipients are equipped to
oversee and implement a hearing process focused on the relevant facts
at issue, including relevant cross-examination questions, without
converting classrooms into courtrooms or necessitating that
participants be attorneys or judges. To ensure that recipients
understand that the individuals serving as a recipient's decision-
maker(s) must understand how to conduct a live hearing and how to
address relevance issues, we have revised Sec. 106.45(b)(1)(iii) to
require decision-makers to receive such training.
The Department agrees with commenters who asserted that
postsecondary institutions have already become familiar with the
concept of party advisors of choice, that many postsecondary
institutions routinely enforce a rule that forbids party advisors from
speaking during proceedings (often referred to as a ``potted plant''
rule), and that this practice demonstrates that postsecondary
institutions are capable of appropriately controlling party advisors
even without the power to hold attorneys in contempt of court. The
Department does not believe that determinations about whether certain
questions or evidence are relevant or directly related to the
allegations at issue requires legal training and that such factual
determinations reasonably can be made by layperson recipient officials
impartially applying logic and common sense. The Department believes
that recipients are capable of, and committed to, controlling a hearing
environment to keep the proceeding focused on relevant evidence and
ensuring that participants are treated respectfully, such that a
recipient's Title IX grievance process will not be ``weaponized'' for
or against any party. The Department notes that in criminal
proceedings, defendants have a right to self-representation raising the
potential for a party to personally conduct cross-examination of
witnesses, whereas the final regulations do not grant a right of self-
representation and thus avoid the risks of ineffectiveness and trauma
for complainants that may arise where a perpetrator personally cross-
examines a victim.
The Department acknowledges that even in criminal settings, in-
person cross-examination is not always required, and Sec.
106.45(b)(6)(i) has adapted the procedure of cross-examination in a way
that avoids importation of criminal law standards, for example by
requiring the parties to be in separate rooms (upon either party's
request), and disallowing a right of self-representation even if a
party would otherwise wish to be self-represented. The Department
disagrees, however, that allowing pre-recorded testimony in lieu of
answering of questions during a live hearing would sufficiently
accomplish the function of cross-examination in the postsecondary
context, where the parties' and decision-maker's ability to hear
parties' and witness's answers to questions and immediate follow-up
questions is the better method of ``airing out'' all viewpoints about
the allegations at issue. Pre-recorded testimony does not, for example,
allow a party to challenge in real time any inconsistencies and
inaccuracies in the other party's testimony by posing follow-up
questions.
Changes: None.
Demeanor Evaluation Is Unreliable
Comments: Commenters argued that cross-examination is an
opportunity to evaluate the body language and demeanor of a party under
questioning for the purpose of assessing credibility \1219\ but that
while credibility is typically based on a number of factors such as
sufficient specific detail, inherent plausibility, internal
consistency, corroborative evidence, and demeanor, the most unreliable
factor is demeanor. Commenters asserted that research shows how people
interpret another person's demeanor is easily misconstrued, what people
``read'' in facial expression and body language is ``highly ambiguous
and cannot be interpreted without reference to pre-existing schemas and
assumptions,'' \1220\ a person's ability to judge truthfulness is not
better than 50 percent accuracy, and what people often mistake for
signs of deception are often actually indicators of stress-coping
mechanisms.\1221\ Commenters argued that research shows that cross-
examination does not accurately assess credibility or yield accurate
testimony, especially for vulnerable witnesses such as sexual abuse
victims, individuals with intellectual disabilities, or children, and
accuracy of children's testimony may be affected by a child's self-
esteem, confidence, and the presence of parents during testimony.\1222\
Commenters argued that
[[Page 30321]]
decisions based on observing demeanor could lead to erroneous findings
of responsibility when facts do not warrant that outcome, that
decision-makers may be more likely to find a respondent responsible
after watching an emotional complainant describe an alleged assault, or
unfairly view a respondent as not credible just because the respondent
seems nervous when the nervousness is due to the serious potential
consequences of the hearing. Thus, commenters argued, injecting cross-
examination into a Title IX campus adjudication that likely depends on
under-trained volunteers to assess credibility, will not improve
accuracy of outcomes or increase fairness over the status quo but will
make survivors reticent even to report sex discrimination.\1223\
Commenters asked what the Department's data-driven basis is for
concluding that cross-examination is the most effective procedure for
determining truth and credibility. Commenters argued that cross-
examination will take an emotional toll on all participants \1224\ and
that complainants, respondents, and witnesses will all be unwilling to
endure it, including because cross-examination could compromise their
position in criminal and civil proceedings.
---------------------------------------------------------------------------
\1219\ Commenters cited: H. Hunter Bruton, Cross-Examination,
College Sexual-Assault Adjudications, and the Opportunity for Tuning
up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. &
Pub. Pol'y 145 (2017).
\1220\ Commenters cited: Susan A. Bandes, Remorse, Demeanor, and
the Consequences of Misinterpretation: The Limits of Law as a Window
into the Soul, 3 Journal of L., Religion & St. 170, 179 (2014).
\1221\ Commenters cited: Olin Guy Wellborn III, Demeanor, 76
Cornell L. Rev. 1075, 1080 (1991) for the proposition that when
interviewees are questioned by ``suspicious interviewers, subjects
tend to view their responses as deceptive even when they are
honest'' in part because the interrogation places the interviewee
under stress, which induces behavior likely to be interpreted as
deceptive.
\1222\ Commenters cited: Mark W. Bennett, Unspringing the
Witness Memory and Demeanor Trap: What Every Judge and Juror Needs
to Know About Cognitive Psychology and Witness Credibility, 64 Am.
Univ. L. Rev. 1331 (2015); Megan Reidy, Comment: The Impact of Media
Coverage on Rape Shield Laws in High-Profile Cases: Is the Victim
Receiving a ``Fair Trial'', 54 Cath. Univ. L. Rev. 297, 308 (2005);
Jules Epstein, The Great Engine That Couldn't: Science, Mistaken
Identifications, and the Limits of Cross-Examination, 36 Stetson L.
Rev. 3 (2007); Tim Valentine & Katie Maras, The Effect of Cross-
Examination on the Accuracy of Adult Eyewitness Testimony, 25
Applied Cognitive Psychol. 4 (2011); Jacqueline Wheatcroft & Louise
Ellison, Evidence in Court: Witness Preparation and Cross-
Examination Style Effects on Adult Witness Accuracy, 30 Behavioral
Sci. & the L. 6 (2012); Rachel Zajac & Harlene Hayne, I Don't Think
That's What Really Happened: The Effect of Cross-examination on the
Accuracy' of Children's Reports, 9 Journal of Experimental Psychol.:
Applied 3 (2003); Fiona Jack & Rachel Zajac, The Effect of Age and
Reminders on Witnesses' Responses to Cross-Examination-Style
Questioning, 3 Journal of Applied Research in Memory & Cognition 1
(2014); Saskia Righarts et al., Addressing the Negative Effect of
Cross-examination Questioning on Children's Accuracy: Can We
Intervene?, 37 Law & Hum. Behavior 5 (2013); Lauren R. Shapiro,
Eyewitness Memory for a Simulated Misdemeanor Crime: The Role of Age
and Temperament in Suggestibility, 19 Applied Cognitive Psychol. 3
(2005); Emily Henderson, Bigger Fish to Fry: Should the Reform of
Cross-examination Be Expanded Beyond Vulnerable Witnesses, 19 Int'l
J. of Evidence & Proof 2 (2015); Rachel Zajac et al., Disorder in
the Courtroom: Child Witnesses Under Cross-examination, 32
Developmental Rev. 3, 198 (2012); ``Cross-examination: Impact on
Testimony,'' Wiley Encyclopedia of Forensic Science 656 (Allan
Jamieson & Andre Moenssens eds., 2009); Caroline Bettenay et al.,
Cross-examination: The Testimony of Children With and Without
Intellectual Disabilities, 28 Applied Cognitive Psychol. 2 (2014);
Joyce Plotnikoff & Richard Woolfson, ```Kicking and Screaming': The
Slow Road to Best Evidence,'' in Children and Cross-examination:
Time to Change the Rules? 28 (John Spencer & Michael Lamb eds.,
2012); Rhiannon Fogliati & Kay Bussey, The Effects of Cross-
examination on Children's Coached Reports, 21 Psychol., Pub. Pol'y,
& L. 1 (2015); Saskia Righarts et al., Young Children's Responses to
Cross-examination Style Questioning: The Effects of Delay and
Subsequent Questioning, 21 Psychol., Crime & L. 3 (2015); Rhiannon
Fogliati & Kay Bussey, The Effects of Cross-examination on
Children's Reports of Neutral and Transgressive Events, 19 Legal &
Crim. Psychol. 2 (2014); Rachel Zajac & Harlene Hayne, The Negative
Effect of Cross-examination Style Questioning on Children's
Accuracy: Older Children are Not Immune, 20 Applied Cognitive
Psychol. 3 (2006); Rachel Zajac et al., Asked and Answered:
Questioning Children in the Courtroom, 10 Psychiatry, Psychol., & L
1 (2003); Rachel Zajac et al., The Diagnostic Value of Children's
Responses to Cross-examination Questioning, 34 Behavioral Sci. & the
L. 1 (2016); John E.B. Myers, The Child Witness: Techniques for
Direct Examination, Cross-examination, and Impeachment, 18 Pacific
L. Rev. 801, 882, 886, 887, 890, 891 (1987); Gail S. Goodman et al.,
Testifying in Criminal Court: Emotional Effects on Child Sexual
Assault Victims, Monographs of the Society for Research in Child
Development, Serial no. 229, Vol. 57, No. 5, at p. 85 (1992);
Richard S. Ofshe & Richard A. Leo, The Decision to Confess Falsely,
Rational Choice and Irrational Action, 74 Denv. Univ. L. Rev. 979,
985 (1997); Thomas J. Berndt, Developmental Changes in Conformity to
Peers and Parents, 15 Developmental Psychol. 608, 615 (1979).
\1223\ Commenters cited: Kathryn M. Stanchi, The Paradox of the
Fresh Complaint Rule, 37 Boston Coll. L. Rev. 146 (1996); Kathryn M.
Stanchi, Dealing with Hate in the Feminist Classroom, 11 Mich. J. of
Gender & L. 173 (2005); Morrison Torrey, When Will We Be Believed?
Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24
U.C. Davis L. Rev. 1013, 1014 (1991).
\1224\ Commenters cited: Eleanor W. Myers & Edward D. Ohlbaum,
Discrediting the Truthful Witness: Demonstrating the Reality of
Adversary Advocacy, 69 Fordham L. Rev. 1055 (2000).
---------------------------------------------------------------------------
Some commenters argued that cross-examination contemplates a
decision-maker observing witnesses to assess credibility based on a
witness's demeanor, which increases the danger of racial bias and
stereotypes infecting the decision-making process. Commenters argued
that Black female students are disadvantaged by cross-examination due
to negative, unsupportable stereotypes that Black females are
aggressive and sexually promiscuous, and that these students are more
likely to be falsely seen as the initiator of sexual harassment or
abuse upon cross-examination. Commenters asserted that cross-
examination will make male victims scared to report sexual assault
perpetrated by a male, for fear of facing a skilled cross-examiner
whose aim will be to discredit the male survivor by painting him as an
instigator or as having consented to gay sexual activity.
A few commenters argued that cross-examination contradicts the
concept of an impartial hearing.
Discussion: The Department agrees with commenters who asserted that
cross-examination provides opportunity for a decision-maker to assess
credibility based on a number of factors, including evaluation of body
language and demeanor, specific details, inherent plausibility,
internal consistency, and corroborative evidence. Even if commenters
correctly characterize research that casts doubt on the human ability
to discern truthfulness by observing body language and demeanor, with
respect to determining the credibility of a narrative or statement, as
commenters acknowledged, such credibility determinations are not based
solely on observing demeanor, but also are based on other factors
(e.g., specific details, inherent plausibility, internal consistency,
corroborative evidence). Cross-examination brings those important
factors to a decision-maker's attention in a way that no other
procedural device does; furthermore, while social science research
demonstrates the limitations of demeanor as a criterion for judging
deception, studies demonstrate that inconsistency is correlated with
deception.\1225\ Thus, cross-examination remains an important part of
truth-seeking in adjudicative proceedings, partly because of the live,
in-the-moment nature of the questions and answers, and partly because
cross-examination by definition is conducted by someone whose very
purpose is to advance one side's perspective. When that happens on
behalf of each side, the decision-maker is more likely to see and hear
relevant evidence from all viewpoints and have more information with
which to reach a determination that better reflects the truth of the
allegations.\1226\ While commenters contended that some studies cast
doubt on the effectiveness of cross-examination in eliciting accurate
information, many such studies focus on cross-examination of child
victims as
[[Page 30322]]
opposed to adult victims \1227\ and in any event that literature has
not persuaded U.S. legal systems to abandon cross-examination,
particularly with respect to adults, as the most effective--even if
imperfect--tool for pursuing reliable outcomes through exposure of
inaccuracy or lack of candor on the part of parties and witnesses.
---------------------------------------------------------------------------
\1225\ E.g., H. Hunter Bruton, Cross-Examination, College
Sexual-Assault Adjudications, and the Opportunity for Tuning up the
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub.
Pol'y, 145, 161 (2017) (``While not all inconsistencies arise from
deceit, studies have reliably established a link between consistency
in testimony and truth telling. And in general, deceitful witnesses
have a harder time maintaining consistency under questioning that
builds upon their previous answers.'') (internal citations omitted).
\1226\ Id. at 158-59 (``Cross-examination highlights the errors
of well-intentioned and deceptive witnesses alike. Witnesses can
neglect to explain their account fully or make mistakes. When a
witness first testifies, her words are `a selective presentation of
aspects of what the witness remembers, organized in a willful or at
least a purposeful manner.' Cross-examination breaks down carefully
curated narratives: `[it] places in the hands of the cross-examiner
some of the means to show the gaps between the truth and the telling
of it.' What witnesses think they know may in fact be an illusion
constructed by the unholy union between the human's brain fallible
nature and outside influences. Probing questioning elicits details
that did not appear in the witness's first account. As the witness
adds details, his story may change or completely contradict original
assertions. Each new detail or differing characterization represents
information the fact-finder would not have otherwise received. In so
doing, adversarial questioning exposes witness error, or at least
the source of possible error. The shortcomings of perception and
memory are among the errors that remain hidden without cross-
examination. Cross-examination reminds fact-finders that the
limitations of perception and memory affect the verisimilitude of
all testimony. Without this reminder, fact-finders may place undue
weight on witness testimony.'') (internal citations omitted).
\1227\ Id. at 164-65 (``Experimental studies suggest that cross-
examination can mislead witnesses and cause them to change accurate
answers to inaccurate answers. Admittedly, there are more studies
documenting how cross-examination negatively affects the accuracy of
child-victims' testimony, but the literature suggesting similar
results for adult victims continues to grow. A number of factors
contribute to the likelihood that a witness will revise what was at
first accurate testimony. . . . Put simply, in many cases, `honest
witnesses can be misled by cross-examination.' '') (internal
citations omitted).
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The Department notes that to the extent that commenters correctly
characterize research as indicating that what decision-makers may
interpret as signs of deception may in fact be signs of stress, many
commenters have pointed out that a grievance process is stressful for
both complainants and respondents, and therefore that concern exists
for both parties. However, it does not negate the value of cross-
examination in bringing to light factors other than demeanor that bear
on credibility (such as plausibility and consistency). The final
regulations require decision-makers to explain in writing the reasons
for determinations regarding responsibility; \1228\ if a decision-maker
inappropriately applies pre-existing assumptions that amount to bias in
the process of evaluating credibility, such bias may provide a basis
for a party to appeal.\1229\ The Department expects that decision-
makers will be well-trained in how to serve impartially, including how
to avoid prejudgment of the facts at issue and avoid bias,\1230\ and
the Department notes that judging credibility is traditionally left in
the hands of non-lawyers without specialized training, in the form of
jurors who serve as fact-finders in civil and criminal jury trials,
because assessing credibility based on factors such as witness
demeanor, plausibility, and consistency are functions of common sense
rather than legal expertise.
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\1228\ Section 106.45(b)(7).
\1229\ Section 106.45(b)(8).
\1230\ Section 106.45(b)(1)(iii).
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The Department acknowledges that cross-examination may be
emotionally difficult for parties and witnesses, especially when the
facts at issue concern sensitive, distressing incidents involving
sexual conduct. The Department recognizes that not every party or
witness will wish to participate, and that recipients have no ability
to compel a party or witness to participate. The final regulations
protect every individual's right to choose whether to participate by
including Sec. 106.71, which expressly forbids retaliating against any
person for exercising rights under Title IX including participation or
refusal to participate in a Title IX proceeding. Further, Sec.
106.45(b)(6)(i) includes language that directs a decision-maker to
reach the determination regarding responsibility based on the evidence
remaining even if a party or witness refuses to undergo cross-
examination, so that even though the refusing party's statement cannot
be considered, the decision-maker may reach a determination based on
the remaining evidence so long as no inference is drawn based on the
party or witness's absence from the hearing or refusal to answer cross-
examination (or other) questions. Thus, even if a party chooses not to
appear at the hearing or answer cross-examination questions (whether
out of concern about the party's position in a concurrent or potential
civil lawsuit or criminal proceeding, or for any other reason), the
party's mere absence from the hearing or refusal to answer questions
does not affect the determination regarding responsibility in the Title
IX grievance process.
The Department acknowledges that in any situation where a
complainant has alleged sexual misconduct without the complainant's
consent, the possibility exists that the respondent will contend that
the sexual conduct was in fact consensual, and that cross-examination
in those situations might include questions concerning whether consent
was present, resulting in discomfort for complainants in such cases,
including for complainants alleging male-on-male sexual violence.
However, where a sexual offense turns on the existence of consent and
that issue is contested, evidence of consent is relevant and each
party's advisor can respectfully ask relevant cross-examination
questions about the presence or absence of consent.
The Department disagrees that the cross-examination procedure
described in Sec. 106.45(b)(6)(i) contradicts the concept of
impartiality of the Sec. 106.45 grievance process. Because these final
regulations require each party's advisor, and not the recipient (as the
investigator, decision-maker, or other recipient official), to conduct
cross-examination, the recipient remains impartial and neutral toward
both parties throughout the entirety of the grievance process. By
contrast, the parties (through their advisors) are not impartial, are
not neutral, and are not objective. Rather, the parties involved in a
formal complaint of sexual harassment each have their own viewpoints,
beliefs, interests, and desires about the outcome of the grievance
process and their participation in the process is for the purpose of
furthering their own viewpoints. Cross-examination is conducted by the
parties' advisors, who have no obligation to be neutral, while the
recipient remains impartial and neutral with respect to both parties by
observing the parties' respective advocacy of their own perspectives
and interests and reaching a determination regarding responsibility
based on objective evaluation of the evidence. Thus, the grievance
process remains impartial, even though the parties and their advisors
are, by definition, not impartial.
Changes: The final regulations add language to Sec.
106.45(b)(6)(i) stating that if a party or witness does not submit to
cross-examination at the hearing, the decision-maker must not rely on
any statement of that party or witness in reaching a determination
regarding responsibility; provided, however, that the decision-maker
cannot draw any inference about the determination regarding
responsibility based solely on a party's or witness's absence from the
hearing or refusal to answer cross-examination or other questions. The
final regulations also add Sec. 106.71 prohibiting retaliation and
providing in relevant part that no recipient or other person may
intimidate, threaten, coerce, or discriminate against any individual
for the purpose of interfering with any right or privilege secured by
title IX or part 106 of the Department's regulations, or because the
individual has made a report or complaint, testified, assisted, or
participated or refused to participate in any manner in an
investigation, proceeding, or hearing under this part.
Trauma Responses
Comments: Some commenters argued that cross-examination is
inherently unfair for survivors because any adversarial questioning may
trigger a trauma response (manifesting as panic attacks, flashbacks,
painful memories, dissociation, or even suicidal ideation) and instead
survivors must be able to recount their experience in a non-stressful
environment where they feel safe, without the stress and pressure of
cross-examination that can result in a survivor not being able to give
a correct account of what happened or mixing up important facts that
can affect the outcome of the case. Commenters argued that trauma
shapes memory
[[Page 30323]]
patterns making details of sexual violence difficult to remember, such
that traditional cross-examination may lead to a mistaken conclusion
that a trauma victim is lying when in reality the victim is being
truthful but is unable to recall or answer questions about events in a
detailed, linear, or consistent manner. Commenters argued that cross-
examination is designed to point out inconsistencies in a person's
testimony often by asking confusing, complex, or leading
questions,\1231\ and neurobiological effects of trauma affect the brain
resulting in fragmented or blocked memories of details of the traumatic
event.\1232\
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\1231\ Commenters cited: Rachel Zajac & Paula Cannan, Cross-
Examination of Sexual Assault Complainants: A Developmental
Comparison, 16 Psychiatry, Psychol. & L. (sup.1) 36 (2009).
\1232\ Many commenters cited to information regarding the impact
of trauma, such as the data noted in the ``Commonly Cited Sources''
subsection of the ``General Support and Opposition'' section of this
preamble, in support of arguments that cross-examination may trigger
a trauma response and that trauma victims are often unable to recall
the traumatic events in a detailed, linear fashion. Commenters also
cited: Substance Abuse and Mental Health Services Administration,
Center for Substance Abuse Treatment, Trauma-Informed Care in
Behavioral Health Services (2014); Massachusetts Advocates for
Children: Trauma and Learning Policy Initiative, Helping Traumatized
Children Learn: Supportive School Environments for Children
Traumatized by Family Violence (2005).
---------------------------------------------------------------------------
Commenters argued that counterintuitive responses to rape, sexual
assault, and other forms of sexual violence are common because trauma
impacts the body and brain in ways that impact a person's affect,
emotions, behaviors, and memory recall, such that these normal
responses to abnormal circumstances can seem perplexing to individuals
untrained in sexual violence dynamics and research about the
neurobiology of trauma, leading people to unfairly undermine a victim's
credibility. Commenters argued that research shows that trauma-informed
questioning results in potentially more valuable, reliable information
than traditional cross-examination.\1233\ Commenters asserted that
yelling at someone to recall a specific sequence of events they
experienced under traumatic conditions decreases the accuracy of the
recall provided.
---------------------------------------------------------------------------
\1233\ Commenters cited: Sara F. Dudley, Paved with Good
Intentions: Title IX Campus Sexual Assault Proceedings and the
Creation of Admissible Victim Statements, 46 Golden Gate Univ. L.
Rev. 117 (2016).
---------------------------------------------------------------------------
Commenters asserted that because rape is about power and control,
giving a perpetrator more power and control via cross-examination will
only intimidate and hurt a victim more.\1234\ Commenters argued that
while cross-examination is uncomfortable for most people, it can have
severe impacts on survivors' mental health \1235\ and therefore also on
their academic performance. One commenter argued that we would never
require our military veterans suffering from PTSD to return from war
and sit in a room listening to exploding bombs, so why would we require
a rape victim to face interrogation in front of the source of their
trauma immediately after the trauma occurred?
---------------------------------------------------------------------------
\1234\ Commenters cited: Ryan M. Walsh & Steven E. Bruce, The
Relationships Between Perceived Levels of Control, Psychological
Distress, and Legal System Variables in a Sample of Sexual Assault
Survivors, 17 Violence Against Women 5 (2011).
\1235\ Commenters cited: Jacqueline M. Wheatcroft et al.,
Revictimizing the Victim? How Rape Victims Experience the UK Legal
System, 4 Victims & Offenders 3 (2009); Mark Littleton, ``Sexual
Harassment of Students by Faculty Members,'' in Encyclopedia of Law
and Higher Education 411-12 (Charles J. Russo ed., 2010).
---------------------------------------------------------------------------
Discussion: The Department understands commenters' concerns that
survivors of sexual harassment may face trauma-related challenges to
answering cross-examination questions about the underlying allegations.
The Department is aware that the neurobiology of trauma and the impact
of trauma on a survivor's neurobiological functioning is a developing
field of study with application to the way in which investigators of
sexual violence offenses interact with victims in criminal justice
systems and campus sexual misconduct proceedings. Under these final
regulations, recipients have discretion to include trauma-informed
approaches in the training provided to Title IX Coordinators,
investigators, decision-makers, and persons who facilitate informal
resolutions so long as the training complies with the requirements of
Sec. 106.45(b)(1)(iii) and other requirements in Sec. 106.45, and
nothing in the final regulations impedes a recipient's ability to
disseminate educational information about trauma to students and
employees. As attorneys and consultants with expertise in Title IX
grievance proceedings have noted, trauma-informed practices can be
implemented as part of an impartial, unbiased system that does not rely
on sex stereotypes, but doing so requires taking care not to permit
general information about the neurobiology of trauma to lead Title IX
personnel to apply generalizations to allegations in specific
cases.\1236\ Because cross-examination occurs only after the recipient
has conducted a thorough investigation, trauma-informed questioning can
occur by a recipient's investigator giving the parties opportunity to
make statements under trauma-informed approaches prior to being cross-
examined by the opposing party's advisor.
---------------------------------------------------------------------------
\1236\ See, e.g., Jeffrey J. Nolan, Fair, Equitable Trauma-
Informed Investigation Training (Holland & Knight updated July 19,
2019) (white paper summarizing trauma-informed approaches to sexual
misconduct investigations, identifying scientific and media support
and opposition to such approaches, and cautioning institutions to
apply trauma-informed approaches carefully to ensure impartial
investigations); ``Recommendations of the Post-SB 169 Working
Group,'' 3 (Nov. 14, 2018) (report by a task force convened by
former Governor of California Jerry Brown to make recommendations
about how California institutions of higher education should address
allegations of sexual misconduct) (trauma-informed ``approaches have
different meanings in different contexts. Trauma-informed training
should be provided to investigators so they can avoid re-
traumatizing complainants during the investigation. This is distinct
from a trauma-informed approach to evaluating the testimony of
parties or witnesses. The use of trauma-informed approaches to
evaluating evidence can lead adjudicators to overlook significant
inconsistencies on the part of complainants in a manner that is
incompatible with due process protections for the respondent.
Investigators and adjudicators should consider and balance
noteworthy inconsistencies (rather than ignoring them altogether)
and must use approaches to trauma and memory that are well grounded
in current scientific findings.''). Because of the lack of a
singular definition of ``trauma-informed'' approaches, and the
variety of contexts that such approaches might be applied, the
Department does not mandate ``trauma-informed'' approaches but
recipients have flexibility to employ trauma-informed approaches so
long as the recipient also complies with all requirements in these
final regulations.
---------------------------------------------------------------------------
With respect to cross-examination, the Department notes that the
final regulations do not prevent a recipient from granting breaks
during a live hearing to permit a party to recover from a panic attack
or flashback, nor do the final regulations require answers to cross-
examinations to be in linear or sequential formats. The final
regulations do not require that any party, including a complainant,
must recall details with certain levels of specificity; rather, a
party's answers to cross-examination questions can and should be
evaluated by a decision-maker in context, including taking into account
that a party may experience stress while trying to answer questions.
Because decision-makers must be trained to serve impartially without
prejudging the facts at issue, the final regulations protect against a
party being unfairly judged due to inability to recount each specific
detail of an incident in sequence, whether such inability is due to
trauma, the effects of drugs or alcohol, or simple fallibility of human
memory. We have also revised Sec. 106.45(b)(6)(i) in a manner that
builds in a ``pause'' to the cross-examination process; before a party
or witness answers a cross-examination question, the decision-maker
must determine if the question is relevant. This helps ensure that
content of cross-examination remains focused
[[Page 30324]]
only on relevant questions and that the pace of cross-examination does
not place undue pressure on a party or witness to answer immediately.
The Department reiterates that recipients retain the discretion to
control the live hearing environment to ensure that no party is
``yelled'' at or asked questions in an abusive or intimidating manner.
The Department further reiterates that cross-examination is as valuable
a tool for complainants to challenge a respondent's version of events
as it is for a respondent to challenge a complainant's narrative.
Because cross-examination is conducted only through party advisors, we
believe that the cross-examination procedure helps to equalize power
and control, because both parties have equal opportunity to ask
questions that advocate the party's own perspectives and beliefs about
the underlying incident regardless of any power, control, or authority
differential that exists between the parties.
The Department agrees that cross-examination is likely an
uncomfortable experience for most people, including complainants and
respondents; numerous commenters have informed the Department that
navigating a grievance process as a complainant or as a respondent has
caused individuals to feel stressed, have difficulty focusing on
academic performance, and feel anxious and depressed. The final
regulations offer both parties protection against feeling forced to
participate in a grievance process and equal procedural protections
when an individual does participate. To that end, the final regulations
require recipients to offer complainants supportive measures regardless
of whether a formal complaint is filed \1237\ (and encourage supportive
measures for respondents as well),\1238\ and where a party does
participate in a grievance process the party has the right to an
advisor of choice.\1239\ Additionally, the final regulations add Sec.
106.71 prohibiting retaliation and specifically protecting an
individual's right to participate or not participate in a grievance
process.
---------------------------------------------------------------------------
\1237\ Section 106.44(a).
\1238\ Section 106.30 (defining ``supportive measures'' and
expressly indicating that such individualized services may be
provided to complainants or respondents); Sec. 106.45(b)(1)(ix)
(requiring a recipient's grievance process to describe the range of
supportive measures available to complainants and to respondents).
\1239\ Section 106.45(b)(5)(iv).
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The Department appreciates a commenter's analogy to a military
veteran experiencing PTSD; however, the we believe that Sec.
106.45(b)(6)(i) anticipates the potential for re-traumatization of
sexual assault victims and mitigates such an effect by ensuring that a
complainant (or respondent) can request being in separate rooms for the
entire live hearing (including during cross-examination) so that the
parties never have to face each other in person, by leaving recipients
flexibility to design rules (applied equally to both parties) that
ensure that no party is questioned in an abusive or intimidating
manner, and by requiring the decision-maker to determine the relevance
of each cross-examination question before a party or witness answers.
Further, the Department notes that there is no statute of limitations
setting a time frame for filing a formal complaint,\1240\ and that
completing the investigation under Sec. 106.45 requires a reasonable
amount of time (for example, the parties must be given an initial
written notice of the allegations, the recipient must gather evidence,
give the parties ten days to review the evidence, prepare an
investigative report, and give the parties ten days to review the
investigative report),\1241\ and therefore it is unlikely that a
complainant would ever be required to ``immediately'' undergo cross-
examination following a sexual assault covered by Title IX.
---------------------------------------------------------------------------
\1240\ Section 106.30 (defining ``formal complaint'' and
providing that a complainant must be ``participating or attempting
to participate'' in the recipient's education program or activity at
the time of filing a formal complaint). Even a complainant who has
graduated may, for instance, be ``attempting to participate'' in the
recipient's education program or activity by, for example, desiring
to apply to a graduate program with the recipient, or desiring to
remain involved alumni events and organizations.
\1241\ E.g., Sec. 106.45(b)(2); Sec. 106.45(b)(5)(i); Sec.
106.45(b)(5)(vi); Sec. 106.45(b)(5)(vii).
---------------------------------------------------------------------------
Changes: None.
Reliance on Rape Myths
Comments: Many commenters cited an article \1242\ by Sarah
Zydervelt et al., (herein, ``Zydervelt 2016'') describing cross-
examination of rape victims as often involving detailed, personal,
humiliating questions rooted in sex stereotypes and rape myths that
tend to blame victims for incidents of sexual violence.\1243\
Commenters argued that because cross-examination relies on rape myths,
requiring cross-examination contradicts Sec. 106.45(b)(1)(iii) which
forbids training materials for Title IX personnel from relying on sex
stereotypes.
---------------------------------------------------------------------------
\1242\ Commenters cited: Sarah Zydervelt, et al., Lawyers'
Strategies for Cross-examining Rape Complainants: Have we Moved
Beyond the 1950s?, 57 British J. of Criminology 3 (2016); Olivia
Smith & Tina Skinner, How Rape Myths Are Used and Challenged in Rape
and Sexual Assault Trials, 26 Social & Legal Studies 4 (2017).
\1243\ Many commenters cited to information regarding negative
impacts of sexual harassment and harmful effects of institutional
betrayal, such as the data noted in the ``Impact Data'' and
``Commonly Cited Sources'' subsections of the ``General Support and
Opposition'' section of this preamble, in support of arguments that
cross-examination will further reduce rates of reporting.
---------------------------------------------------------------------------
Commenters argued that the Department's insistence on cross-
examination for rape victims when victims of non-sexual crimes do not
have to undergo cross-examination demonstrates ``rape exceptionalism,''
an unfounded notion that sexual assault and rape are different kinds of
cases because rape victims lie more than victims of other crimes.\1244\
---------------------------------------------------------------------------
\1244\ Commenters cited: Naomi Mann, Taming Title IX Tensions,
20 Univ. Pa. J. of Constitutional L. 631, 666 (2018); Michelle
Anderson, Campus Sexual Assault Adjudication and Resistance to
Reform, 125 Yale L. J. 1940, 2000 (2016) (Title IX is a civil rights
mechanism about institutional accountability for providing equal
education); id. at 1943, 1946-50 (the tendency to treat rape victims
as distinct from other crime victims has roots in criminal justice
and civil litigation where rules have required victim testimony to
be corroborated and victims have carried extra burdens to show they
resisted rape); cf. Donald Dripps, After Rape Law: Will the Turn to
Consent Normalize the Prosecution of Sexual Assault?, 41 Akron L.
Rev. 957, 957 (2008) (``Rape is an exceptional area of law.'').
---------------------------------------------------------------------------
Discussion: The study cited most often by commenters for the
proposition that cross-examination relies on questions rooted in sex
stereotypes and rape myths, Zydervelt 2016, is a research study in
which the authors compared strategies and tactics employed by defense
attorneys in criminal trials in Australia and New Zealand during two
time periods (from 1950-1959, and from 1996-2011) to analyze whether
the strategies and tactics differed in those time periods (the earlier
time period representing pre-legal reforms in the area of rape law, and
the later time period representing contemporary legal reforms such as
defining rape to include marital rape, eliminating the requirement of
corroborating evidence and the requirement that the victim showed
physical resistance to the sexual attack, and imposing rape shield
protections limiting questions about a victim's sexual history and
sexual behavior).\1245\ Zydervelt 2016 identified four strategies
employed by defense attorneys to challenge a rape victim's testimony:
[[Page 30325]]
Questions designed to challenge plausibility, consistency, credibility,
and reliability. Zydervelt 2016 further identified tactics used to
further each of those four strategies; \1246\ for example, the most
common strategy identified in the study was challenging plausibility,
and the most common tactic used in that strategy involved questions
about the complainant's behavior immediately before or after the
alleged attack.\1247\
---------------------------------------------------------------------------
\1245\ Sarah Zydervelt et al., Lawyers' Strategies for Cross-
examining Rape Complainants: Have we Moved Beyond the 1950s?, 57
British J. of Criminology 3 (2016), at 2. Page numbers referenced in
this section are to the version of this article located at: https://www.researchgate.net/profile/Sarah_Zydervelt/publication/295084744_Lawyers%27_Strategies_for_Cross-Examining_Rape_Complainants_Have_we_Moved_Beyond_the_1950s/links/56f35e4208ae95e8b6cb4ceb/Lawyers-Strategies-for-Cross-Examining-Rape-Complainants-Have-we-Moved-Beyond-the-1950s.pdf?origin=publication_detail, pp. 1-19.
\1246\ Id. at 8-10. For the strategy of challenging
plausibility, the study identified the following tactics used by
defense attorneys during cross-examination questions: Defendant's
good character; lack of injury or clothing damage; complainant's
behavior immediately before and after offense; lack of resistance;
delayed report; continued relationship. For the strategy of
challenging credibility, the study identified the following tactics
used by defense attorneys during cross-examination questions: Prior
relationship with the defendant; sexual history; personal traits;
previous sexual assault complaint; ulterior motive. For the strategy
of challenging reliability, the study identified the following
tactics used by defense attorneys during cross-examination
questions: Alcohol/drug intoxication; barriers to perception; memory
fallibility. For the strategy of challenging consistency, the study
identified the following tactics used by defense attorneys during
cross-examination questions: Inconsistency with complainant's own
account, with defendant's account, with another witness's account,
and with physical evidence.
\1247\ Id. at 11.
---------------------------------------------------------------------------
Zydervelt 2016 defined ``rape myths'' as ``beliefs about rape that
serve to deny, downplay or justify sexually aggressive behavior that
men commit against women'' which ``can be descriptive, reflecting how
people believe instances of sexual assault typically unfold, or they
can be prescriptive, reflecting beliefs about how a victim of sexual
assault should react'' and further identified common rape myths as
``the belief that victims invite sexual assault by the way that they
dress, their consumption of alcohol, their sexual history or their
association with males with whom they are not in a relationship; the
belief that many women make false allegations of rape; the belief that
genuine assault would be reported to authorities immediately; and the
belief that victims would fight back--and therefore sustain injury or
damage to clothing--during an assault.'' \1248\ Zydervelt 2016
concluded that historically and contemporarily, defense attorneys
employ similar strategies and tactics when cross-examining rape victims
in criminal trials, and that rape victims still report cross-
examination as a distressing and demeaning experience.\1249\ Zydervelt
2016 concluded that leveraging rape myths was a common tactic when
cross-examining rape victims,\1250\ for example, asking questions
suggesting that willingly accompanying a defendant alone to a room
implied consent to a sexual act, or that a ``real'' victim would not
have returned to a party with a defendant if they had just been
sexually assaulted.
---------------------------------------------------------------------------
\1248\ Id. at 3-4 (internal quotation marks and citations
omitted).
\1249\ Id. at 15.
\1250\ Id.
---------------------------------------------------------------------------
The authors of Zydervelt 2016 opined in conclusion that the extent
to which misconceptions about rape shape cross-examination questions in
rape cases likely reflects the extent to which society adheres to
particular beliefs about rape.\1251\ The study's authors also noted
that more research is required to assist policy makers to make informed
decisions about how best to address these issues,\1252\ and further
surmised that because the strategies and tactics used in cross-
examination during rape cases remained similar over time,
investigators, prosecutors, and advocates could preemptively assist
rape victims who need to testify by better preparing the victim to
anticipate the kinds of questions that commonly arise during rape
cross-examinations.\1253\
---------------------------------------------------------------------------
\1251\ Id. at 16-17 (``The root of the problem with cross-
examination likely lies in the combative nature of proceedings''
where it is a defense lawyer's job ``to create reasonable doubt. . .
. Perhaps, then, cross-examination will not change until social
beliefs about rape do. . . . Judges and juries are not imbued with a
special ability to determine the truth; instead, their rely on their
understanding of human nature and common sense. . . . To the extent
that putting these myths in front of the jury has a good chance of
creating reasonable doubt, it is likely that lawyers will continue
to use them.'') (internal citations omitted).
\1252\ Id. at 17.
\1253\ Id. at 16.
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The Department understands commenters' concerns that Zydervelt 2016
indicates that misconceptions about rape and sexual assault victims
permeate cross-examination strategies and tactics in the criminal
justice system. However, this study indicates that to the extent that
misconceptions or negative stereotypes about sexual assault affect
cross-examination in rape cases, the problem lies with societal beliefs
about sexual assault and not with cross-examination as a tool for
resolving competing narratives in sexual assault cases. The final
regulations require recipients to ensure that decision-makers are well-
trained in conducting a grievance process and serving impartially,
using materials that avoid sex stereotypes, and specifically on issues
of relevance including application of the rape shield protections in
Sec. 106.45(b)(6). Further, as noted above, nothing in the final
regulations precludes a recipient from including in that training
information about the impact of trauma on victims or other aspects of
sexual violence dynamics, so long as any such training promotes
impartiality and avoidance of prejudgment of the facts at issue, bias,
conflicts of interest, and sex stereotypes. Thus, unlike a civil or
criminal court system, where jurors who act as fact-finders are not
trained, the Sec. 106.45 grievance process requires recipients to use
decision-makers who have been trained to avoid bias and sex stereotypes
and to focus proceedings on relevant questions and evidence, such that
even if a cross-examination question impermissibly relies on bias or
sex stereotypes while attempting to challenge a party's plausibility,
credibility, reliability, or consistency, it is the trained decision-
maker, and not the party advisor asking a question, who determines
whether the question is relevant and if it is relevant, then evaluates
the question and any resulting testimony in order to reach a
determination regarding responsibility. For the same reasons, the
Department disagrees that cross-examination violates or contradicts
Sec. 106.45(b)(1)(iii), which forbids training materials for Title IX
personnel from relying on sex stereotypes; the latter provision serves
precisely to ensure that decision-makers do not allow sex stereotypes
to influence the decision-maker's determination regarding
responsibility.
The Department disagrees that the Sec. 106.45 grievance process,
including cross-examination at live hearings in postsecondary
institutions, reflects adherence to rape exceptionalism or any belief
that women (or complainants generally) tend to lie about rape more than
other offenses. The Department believes that cross-examination as a
tool for testing competing narratives serves an important truth-seeking
function in a variety of types of misconduct allegations; these final
regulations focus on the procedures designed to prescribe a consistent
framework for recipients' handling of formal complaints of sexual
harassment so that a determination is likely to be accurate in each
particular case, regardless of how infrequently false allegations are
made. The Department reiterates that cross-examination provides
complainants with the same opportunity through an advisor to question
and expose inconsistencies in the respondent's testimony and to reveal
any ulterior motives. In this manner, cross-examination levels the
playing field by giving a complainant as much procedural control as a
respondent, regardless of the fact that exertion of
[[Page 30326]]
power and control is often a dynamic present in perpetration of sexual
assault.
Changes: None.
Cross-Examination as a Due Process Requirement
Comments: Commenters argued that cross-examination is not necessary
because neither the Constitution, nor other Federal law, requires
cross-examination in school conduct proceedings.\1254\ Commenters
characterized recent Sixth Circuit cases, holding that cross-
examination must be provided, as anomalous rather than indicative of a
judicial trend favoring live cross-examination in college disciplinary
proceedings.\1255\ Commenters asserted that the Department's cross-
examination requirement does not contain the limitations that the Sixth
Circuit delineated in Baum; namely, that cross-examination is required
only for public colleges, in situations where credibility is in dispute
and material to the outcome, where potential sanctions are suspension
or expulsion, and where the burden on the university is minimal because
the university already holds hearings for some types of misconduct.
---------------------------------------------------------------------------
\1254\ Commenters cited: Goss v. Lopez, 419 U.S. 565, 583 (1975)
(holding that a ten-day suspension imposed on high school students
by a public school district required due process of law under the
U.S. Constitution, including notice and opportunity to be heard, but
did not require opportunity to cross-examine witnesses); Mathews v.
Eldridge, 424 U.S. 319 (1976); Dixon v. Ala. St. Bd. of Educ., 294
F.2d 150, 158 (5th Cir. 1961); Osteen v. Henley, 13 F.3d 221, 225
(7th Cir. 1993) (holding no violation of constitutional due process
where college student was expelled without a right of cross-
examination); Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 247
(D. Vt. 1994); Coplin v. Conejo Valley Unified Sch. Dist., 903 F.
Supp. 1377, 1383 (C.D. Cal. 1995).
\1255\ Commenters cited: Joanna L. Grossman & Deborah L. Brake,
A Sharp Backward Turn: Department of Education Proposes to Protect
Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov.
29, 2018) (arguing that Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) is
anomalous); William J. Migler, Comment: An Accused Student's Right
to Cross-Examination in University Sexual Assault Adjudicatory
Proceedings, 20 Chap. L. Rev. 357, 380 (2017) (``Lower federal
courts and state courts have applied both Goss and Eldridge (or
similar reasoning behind these cases) to the question of whether
cross-examination is a due process requirement in university
disciplinary proceedings, resulting in a split amongst the
jurisdictions. Among the states that have directly decided on the
issue, courts in eleven states have held that an accused student has
the right to some form of cross-examination of witnesses. Likewise,
the Ninth Circuit and district courts in the First, Second, Third,
and Eighth Circuits have held accused students have the right to
some form of cross-examination. Conversely, courts in sixteen
states, the First, Second, Fourth, Fifth, Sixth, Tenth, and Eleventh
Circuits, and district courts in the Seventh and Eighth Circuits,
have found that cross-examination is not required to protect a
student's Due Process rights in a disciplinary proceeding.'')
(internal citations omitted); cf. Doe v. Baum, 903 F.3d 575 (6th
Cir. 2018).
---------------------------------------------------------------------------
Commenters argued that Federal case law shows a split in how courts
view cross-examination in college disciplinary proceedings with the
weight of Federal case law favoring significant limits on cross-
examination by requiring, at most, questioning through a panel or
submission of written questions rather than traditional, adversarial
cross-examination, for both public and private institutions.\1256\
Commenters argued that colleges and universities should not be required
to ignore judicial precedent simply because the Department currently
finds a recent two-to-one decision from the Sixth Circuit (i.e., Baum)
more persuasive than the many other Federal court decisions that do not
require live cross-examination as part of constitutional due process or
fundamental fairness, and that principles of federalism, administrative
law, and general rule of law demand that the Department refrain from
overreaching by imposing this requirement.
---------------------------------------------------------------------------
\1256\ Commenters cited: Sara O'Toole, Campus Sexual Assault
Adjudication, Student Due Process, and a Bar on Direct Cross-
Examination, 79 Univ. of Pitt. L. Rev. 511 (2018) (examining due
process cases law in educational settings and arguing that parties
directing questions to each other through a hearing panel is
constitutionally sufficient); commenters also cited, e.g., Dixon v.
Ala. St. Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961); Winnick v.
Manning, 460 F.2d 545, 549 (2d Cir.1972); Boykins v. Fairfield Bd.
of Edu., 492 F.2d 697, 701 (5th Cir. 1974); Nash v. Auburn Univ.,
812 F.2d 655, 664 (11th Cir. 1987); Gorman v. Univ. of Rhode Island,
837 F.2d 7, 16 (1st Cir. 1988); Donohue v. Baker, 976 F. Supp. 136,
147 (N.D.N.Y. 1997); Schaer v. Brandeis Univ., 432 Mass. 474, 482
(2000).
---------------------------------------------------------------------------
Several commenters argued that regardless of how cross-examination
is viewed under a constitutional right to due process, private colleges
and universities owe contractual obligations to their students and
employees, not constitutional ones, and requiring live hearings and
cross-examination marks a substantial governmental intrusion into the
relationship between private institutions and their students. Several
commenters asserted that private institutions should remain free to
craft their own adjudication rules so long as such rules are fair and
equitable.
Commenters argued that unless lawmakers specifically direct
universities to grant cross-examination rights, or the right to
counsel, in civil or administrative hearings,\1257\ such elevated
procedures cannot be expected of universities.
---------------------------------------------------------------------------
\1257\ Commenters cited: North Carolina Gen. Stat. Sec. 116-
40.11 (student's right to be represented by counsel, at student's
expense, in campus disciplinary hearings); Mass. Gen. c.71 Sec.
37H-3/4 (student facing expulsion or suspension longer than ten days
for bullying has right to cross-examination and right to counsel).
---------------------------------------------------------------------------
Commenters argued that cross-examination by skilled defense counsel
is the most aggressive means of testing a witness's credibility and, by
requiring this, the proposed rules seem based on a premise that a
complainant's credibility is highly suspect. Commenters asserted that
because a university Title IX grievance process is neither a civil
lawsuit (where a plaintiff seeks money damages against the defendant)
or a criminal trial (where a criminal defendant faces loss of liberty),
the highest degree of credibility-testing is neither necessary nor
reasonable. Commenters argued that State laws restricting Sixth
Amendment rights to confront accusers can be constitutionally
permissible due to policy concerns for protecting sexual assault
victims from suffering further psychological harms,\1258\ and thus
similar or greater restrictions can be part of a noncriminal proceeding
like a Title IX process.
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\1258\ Commenters cited: Linda Mohammadian, Sexual Assault
Victims v. Pro Se Defendants, 22 Cornell J. of L. & Pub. Pol'y 491
(2012) (arguing that a Washington State law providing that sexual
assault victims in criminal trials may receive court-appointed
``standby'' counsel and use closed-circuit television to testify is
constitutionally adequate under Sixth Amendment case law).
---------------------------------------------------------------------------
Commenters argued that fairness, including testing credibility, can
be fully achieved without live, adversarial cross-examination, through
questioning by a neutral college administrator,\1259\ referred to by
some commenters as ``indirect cross-examination.'' Commenters similarly
argued that allowing parties to submit questions to be asked by a
hearing officer or panel is sufficiently reliable without causing
trauma to any involved party,\1260\ a practice commenters asserted
should be adopted from the withdrawn 2011 Dear Colleague Letter.
Commenters asserted that this method allows the parties and decision-
maker to hear parties and witnesses answer questions in ``real time''
but without the adversarial purpose and tone of cross-examination.
[[Page 30327]]
Commenters asserted a similar version of this practice, used by Harvard
Law School and endorsed by the American Bar Association Criminal
Justice Section, and by the University of California Post SB 169
Working Group, should be called ``submitted questions'' instead of
``cross-examination'' and would invite both parties to submit questions
to the presiding decision-maker who must then ask all the questions
unless the questions are irrelevant, excluded by a rule clearly adopted
in advance, harassing, or duplicative.
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\1259\ Commenters cited: Sara O'Toole, Campus Sexual Assault
Adjudication, Student Due Process, and a Bar On Direct Cross-
Examination, 79 Univ. of Pitt. L. Rev. 511, 511-14 (2018) (review of
relevant case law demonstrates that live cross-examination is not a
due process requirement in the university setting and questioning
through a hearing panel is constitutionally sufficient) (finding
``the appropriate balance'' between rights for complainants and for
accused students ``is essential to the goal of creating a more equal
and safe educational environment, as moving too far in one direction
may lead to a detrimental backlash and thus prevent effective
solutions'').
\1260\ Commenters cited: The Association of Title IX
Administrators (ATIXA), The 7 Deadly Sins of Title IX
Investigations: The 2016 White Paper (2016).
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Commenters argued that indirect cross-examination, or submitted
questions, is sufficient to meet constitutional due process
requirements under the Supreme Court's Mathews v. Eldridge balancing
test \1261\ and avoids risks inherent to cross-examination in an
educational rather than courtroom setting, namely, that outside a
courtroom lawyers or other advisors could engage in hurtful, harmful
techniques that may impede educational access for the parties.
Commenters argued that a trained fact-finder listening to party
advisors ask questions and introduce evidence is a reactionary approach
and a proactive approach is preferable, whereby the trained decision-
maker elicits appropriate, relevant information from the parties and
witnesses. Commenters argued that most postsecondary institutions
currently use a trauma-informed method of questioning such as indirect
cross-examination or submitted questions,\1262\ and that such practices
have been upheld by nearly all Federal court decisions considering
them.
---------------------------------------------------------------------------
\1261\ Commenters cited: Mathews v. Eldridge, 424 U.S. 319, 321
(1976) (setting forth a three-part balancing test for evaluating the
sufficiency of due process procedures--the private interest being
affected, the risk of erroneous deprivation of that interest through
the procedures at issue, and the government's interest, including
financial and administrative burden that additional procedures would
entail).
\1262\ Commenters cited: Tamara Rice Lave, A Critical Look at
How Top Colleges and Universities are Adjudicating Sexual Assault,
71 Univ. of Miami L. Rev. 377, 396 (2017) (survey of 35 highly-
ranked colleges and universities determined that only six percent of
surveyed institutions permitted traditional cross-examination, while
50 percent permitted questioning through the hearing panel and 30
percent did not allow a respondent to ask questions of the
complainant in any capacity).
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Commenters argued that because credibility is determined by the
decision-maker, and not by parties or witnesses, there should be no
right for parties to directly question the other party or witnesses.
Commenters stated that if the Department's assumption that live cross-
examination is better than submission of questions through a neutral
hearing officer rests on concern that the hearing officer might
unfairly refuse to ask a party's questions, the proposed rules address
that concern by requiring the decision-maker to explain the reasons for
exclusion of any questions, so live cross-examination is not a
necessity on that basis. One commenter argued that although cross-
examination may be the greatest legal engine ever invented for
discovery of truth, engines come in different shapes and sizes for a
reason, and the effective, appropriate version of the engine of cross-
examination in the Title IX context is questioning by neutral hearing
officers.
Some commenters proposed that the decision-maker act as a liaison
between the parties, such that each party's advisor would ask a
question one at a time, live and in full hearing of the other party,
and the decision-maker would then decide whether the other party should
or should not answer the question; commenters asserted that this
version of live cross-examination would better filter out abusive,
irrelevant questions while preserving the opportunity of party advisors
to ask the cross-examination questions. Commenters argued that some
States such as New York have better embodied the settled state of the
law by requiring a fair campus adjudicatory process that does not
include cross-examination. Commenters asserted that the final
regulations should follow the process used by the U.S. Senate during
the confirmation hearings for the Honorable Brett Kavanaugh, Associate
Justice, Supreme Court of the United States, which process was
described by commenters as disallowing any interaction between the
accuser and accused, while conducting questioning of each party
separately by the Senators and a designated neutral questioner.
Discussion: The Department acknowledges that the Supreme Court has
not ruled on what procedures satisfy due process of law under the U.S.
Constitution in the specific context of a Title IX sexual harassment
grievance process held by a postsecondary institution, and that Federal
appellate courts that have considered this particular issue in recent
years have taken different approaches. The Department, as an agency of
the Federal government, is subject to the U.S. Constitution, including
the Fifth Amendment, and cannot interpret Title IX to compel a
recipient, whether public or private, to deprive a person of due
process rights.\1263\ Procedural due process requires, at a minimum,
notice and a meaningful opportunity to be heard.\1264\ Due process
```is flexible and calls for such procedural protections as the
particular situation demands.' '' \1265\ ``The fundamental requirement
of due process is the opportunity to be heard `at a meaningful time and
in a meaningful manner.' '' \1266\
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\1263\ E.g., Peterson v. City of Greenville, 373 U.S. 244
(1963); Truax v. Raich, 239 U.S. 33, 38 (1915).
\1264\ Goss v. Lopez, 419 U.S. 565, 580 (1975) (``At the very
minimum, therefore, students facing suspension and the consequent
interference with a protected property interest must be given some
kind of notice and afforded some kind of hearing.''); Mathews v.
Eldridge, 424 U.S. 319, 333 (1976).
\1265\ Id. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471,
481 (1972)).
\1266\ Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)).
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The Department has determined that the procedures contained in
Sec. 106.45 of these final regulations best achieve the purposes of
(1) effectuating Title IX's non-discrimination mandate by ensuring
fair, reliable outcomes viewed as legitimate in resolution of formal
complaints of sexual harassment so that victims receive remedies, (2)
reducing and preventing sex bias from affecting outcomes, and (3)
ensuring that Title IX regulations are consistent with constitutional
due process and fundamental fairness. The procedures in Sec. 106.45
are consistent with constitutional requirements and best serve the
foregoing purposes, including the right for both parties to
meaningfully be heard by advocating for their own narratives regarding
the allegations in a formal complaint of sexual harassment. In
recognition that what is a meaningful opportunity to be heard may
depend on particular circumstances, the final regulations apply
different procedures in different contexts; for example, where an
emergency situation presents a threat to physical health or safety,
Sec. 106.44(c) permits emergency removal with an opportunity to be
heard that occurs after removal. Where a grievance process is initiated
to adjudicate the respondent's responsibility for sexual harassment, a
live hearing with cross-examination is required in the postsecondary
context but not in elementary and secondary schools. These differences
appropriately acknowledge that different types of process may be
required in different circumstances while prescribing a consistent
framework in similar circumstances so that Title IX as a Federal civil
rights law protects every person in an education program or activity.
As commenters supportive of cross-examination pointed out, and as
commenters opposed to cross-examination acknowledge, the Sixth
[[Page 30328]]
Circuit has held that cross-examination, at least conducted through a
party's advisor, is necessary to satisfy due process in sexual
misconduct cases that turn on party credibility. ``Due process requires
cross-examination in circumstances like these because it is the
greatest legal engine ever invented for uncovering the truth.'' \1267\
The Sixth Circuit reasoned, ``Cross-examination is essential in cases
like Doe's because it does more than uncover inconsistencies--it takes
aim at credibility like no other procedural device.'' \1268\ The Sixth
Circuit in Baum disagreed with the institution's argument that written
statements could substitute for cross-examination, explaining that
``[w]ithout the back-and-forth of adversarial questioning, the accused
cannot probe the witness's story to test her memory, intelligence, or
potential ulterior motives. . . . Nor can the fact-finder observe the
witness's demeanor under that questioning. . . . For that reason,
written statements cannot substitute for cross-examination. . . .
Instead, the university must allow for some form of live questioning in
front of the fact-finder,'' though this requirement can be facilitated
through modern technology, for example by allowing a witness to be
questioned via Skype.\1269\ The Sixth Circuit carefully distinguished
this cross-examination requirement from the Sixth Amendment right of a
criminal defendant to confront witnesses, reasoning that administrative
proceedings need not contain the same protections accorded to the
accused in criminal proceedings.\1270\ The Sixth Circuit further
reasoned that ``[u]niversities have a legitimate interest in avoiding
procedures that may subject an alleged victim to further harm or
harassment . . . [but] the answer is not to deny cross-examination
altogether. Instead, the university could allow the accused student's
agent to conduct cross-examination on his behalf. After all, an
individual aligned with the accused student can accomplish the benefits
of cross-examination--its adversarial nature and the opportunity for
follow-up--without subjecting the accuser to the emotional trauma of
directly confronting her alleged attacker.'' \1271\
---------------------------------------------------------------------------
\1267\ Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (internal
quotation marks and citations omitted).
\1268\ Id. at 582 (internal quotation marks and citations
omitted) (emphasis in original); Doe v. Univ. of Cincinnati, 872
F.3d 393, 401 (6th Cir. 2017) (``Few procedures safeguard accuracy
better than adversarial questioning.'').
\1269\ Baum, 903 F.3d at 582-83 (internal citations omitted)
(emphasis in original).
\1270\ See id. at 583.
\1271\ Id.
---------------------------------------------------------------------------
The Department agrees with the Sixth Circuit's reasoning that a
Title IX grievance process should strike an appropriate balance between
avoiding retraumatizing procedures, and ensuring both parties have the
right to question each other in a manner that captures the real-time,
adversarial benefits of cross-examination to a truth-seeking process.
Section 106.45(b)(6)(i) follows the Sixth Circuit's reasoning by
requiring recipients to give both parties opportunity for cross-
examination, allowing either party to request that cross-examination
(and the entire live hearing) be conducted with the parties in separate
rooms, ensuring that only party advisors conduct cross-examination and
expressly forbidding personal confrontation between parties, and
requiring the decision-maker to determine the relevance of a cross-
examination question before a party or witness answers.
Commenters correctly note that the Sixth Circuit's rationale in
Baum rested on certain limitations or circumstances that justified
requiring cross-examination: The Baum opinion was in the context of a
public university that owes constitutional due process of law to
students and employees; cross-examination is of greatest benefit where
a sexual misconduct case turns on credibility and involves serious
consequences; and a university that already provided hearings for other
types of misconduct could not argue that it faced more than a minimal
burden to provide a live hearing for sexual misconduct cases. As
explained in the ``Role of Due Process in the Grievance Process''
section of this preamble, the Department understands that some
recipients are public institutions that owe constitutional protections
to students and employees while other recipients are private
institutions that do not owe constitutional protections. However,
consistent application of a grievance process to accurately resolve
allegations of sexual harassment under Title IX is as important in
private institutions as public ones, and the Department therefore
adopts a Sec. 106.45 grievance process that results in fair, reliable
outcomes in all postsecondary institutions with procedures that, while
likely to satisfy constitutional due process requirements, remain
independent of constitutional requirements.
The Department notes that while commenters are correct that not
every formal complaint of sexual harassment subject to Sec. 106.45
turns on party or witness credibility, other commenters noted that most
of these complaints do involve plausible, competing narratives of the
alleged incident, making party participation in the process vital for a
thorough evaluation of the available, relevant evidence.\1272\ The
final regulations revise Sec. 106.45(b)(6)(i) to clarify that where a
party or witness does not appear at a live hearing or refuses to answer
cross-examination questions, the decision-maker must disregard
statements of that party or witness but must reach a determination
without drawing any inferences about the determination regarding
responsibility based on the party or witness's failure or refusal to
appear or answer questions. Thus, for example, where a complainant
refuses to answer cross-examination questions but video evidence exists
showing the underlying incident, a decision-maker may still consider
the available evidence and make a determination. The Department thus
disagrees with commenters who argued that the proposed rules force a
party to undergo cross-examination even where the case does not turn on
credibility; if the case does not depend on party's or witness's
statements but rather on other evidence (e.g., video evidence that does
not consist of ``statements'' or to the extent that the video contains
non-statement evidence) the decision-maker can still consider that
other evidence and reach a determination, and must do so without
drawing any inference about the determination based on lack of party or
witness testimony. This result thus comports with the Sixth Circuit's
rationale in Baum that cross-examination is most needed in cases that
involve the need to evaluate credibility of parties as opposed to
evaluation of non-statement evidence.\1273\ Furthermore,
[[Page 30329]]
Sec. 106.45(b)(9) permits recipients to facilitate informal resolution
processes (thus avoiding the need to hold a live hearing with cross-
examination), which may be particularly desirable by the parties and
the recipient in situations where the facts about the underlying
incident are not contested by the parties and thus resolution does not
turn on resolving competing factual narratives.
---------------------------------------------------------------------------
\1272\ See H. Hunter Bruton, Cross-Examination, College Sexual-
Assault Adjudications, and the Opportunity for Tuning up the
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub.
Pol'y, 145, 180-81 (2017) (``Participation in these cases becomes
all the more necessary because the hearing's resolution often
depends on weighing the victim's credibility against the accused's
credibility. In the vast majority of cases, no one else witnesses
the act and no other evidence exists.'') (internal citations
omitted).
\1273\ See Baum, 903 F.3d at 583-84 (despite the university's
contention that prior Sixth Circuit precedent, in Univ. of
Cincinnati, 872 F.3d at 395, 402, meant that a respondent is not
entitled to cross-examination where the university's decision did
not depend entirely on a credibility contest between Roe and Doe,
the Baum Court clarified that University of Cincinnati merely held
that cross-examination was unnecessary when the university's
decision did not rely on any testimonial evidence at all but that
case, and Baum, stand for the proposition that if ``credibility is
in dispute and material to the outcome, due process requires cross-
examination.''); Sec. 106.45(b)(6)(i) is consistent with this Baum
holding inasmuch as the provision bars reliance on statements from
witnesses who do not submit to cross-examination, leaving a
decision-maker able to consider non-statement evidence that may
exist in a particular case.
---------------------------------------------------------------------------
With respect to the other limitations commenters asserted that the
Sixth Circuit noted in its rationale requiring cross-examination (i.e.,
that it is a procedure justified where serious consequences such as
suspension or expulsion are at issue, and where the burden on a
university is minimal), the Department notes that the Baum Court did
not rest its rationale on situations where only suspension or expulsion
was at issue, but rather the Sixth Circuit observed that ``[b]eing
labeled a sex offender by a university has both an immediate and
lasting impact on a student's life'' whereby the student ``may be
forced to withdraw from his classes and move out of his university
housing. His personal relationships might suffer. . . . And he could
face difficulty obtaining educational and employment opportunities down
the road, especially if he is expelled.'' \1274\ The Sixth Circuit thus
recognized the high stakes involved with sexual misconduct allegations
regardless of whether the sanction is expulsion. Further, the
Department doubts that recipients are likely to determine that the type
of conduct captured under the Sec. 106.30 definition of sexual
harassment would not potentially warrant suspension or expulsion.
Additionally, the final regulations revise Sec. 106.45(b)(6)(i) to
permit a recipient to hold live hearings virtually, using technology,
to ameliorate the administrative burden on colleges and universities
that do not already conduct hearings for any type of misconduct
allegation.
---------------------------------------------------------------------------
\1274\ Baum, 903 F.3d at 582 (internal citations omitted)
(emphasis added).
---------------------------------------------------------------------------
The Department is aware that after the public comment period on the
NPRM closed, the First Circuit decided a Title IX sexual misconduct
case in which the First Circuit disagreed with the Sixth Circuit's
holding regarding cross-examination.\1275\ In Haidak, the First Circuit
held that a university could satisfy due process requirements by using
an inquisitorial rather than adversarial method of cross-examination,
by having a neutral school official pose probing questions of parties
and witnesses in real-time, designed to ferret out the truth about the
allegations at issue.\1276\ The First Circuit reasoned that
``[c]onsiderable anecdotal experience suggests that cross-examination
in the hands of an experienced trial lawyer is an effective tool'' but
cross-examination performed by the respondent personally might devolve
into ``acrimony'' rather than a truth-seeking tool that reduces the
risk of erroneous outcomes, while cross-examination conducted by
lawyers risks university proceedings mimicking court trials.\1277\ Also
after the public comment period on the NPRM closed, the First Circuit
decided a case \1278\ under Massachusetts State law involving
discipline of a student by a private college for sexual misconduct, in
which the student argued that failure of the recipient to provide any
form of ``real-time'' cross-examination violated the recipient's
contractual obligation of ``basic fairness'' but the First Circuit held
that the private college owed no constitutional due process to the
student and that State law did not require any form of real-time cross-
examination as part of contractual basic fairness.\1279\ As noted
elsewhere throughout this preamble, while private colleges do not owe
constitutional protections to students or employees, the Department is
obligated to interpret Title IX consistent with constitutional
guarantees, including the Fifth and Fourteenth Amendment guarantees of
due process of law, and the Department believes that Sec.
106.45(b)(6)(i) comports with constitutional due process and notions of
fundamental fairness while effectuating the non-discrimination mandate
of Title IX, even if State laws or a recipient's contract with its
students would not impose the same requirements on private colleges.
---------------------------------------------------------------------------
\1275\ Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 68-70 (1st
Cir. 2019) (``[D]ue process in the university disciplinary setting
requires some opportunity for real-time cross-examination, even if
only through a hearing panel.'').
\1276\ Id. at 69-70.
\1277\ Id.
\1278\ Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir.
2019).
\1279\ Id.
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The Department understands the concerns expressed by commenters,
and echoed in the reasoning of the First Circuit in Haidak, that cross-
examination conducted personally by students may not effectively
contribute to the truth-seeking purpose of a live hearing. Thus, the
Department has crafted Sec. 106.45(b)(6)(i) to require postsecondary
institution recipients to provide parties with an advisor for the
purpose of conducting cross-examination, if a party does not have an
advisor of choice at the hearing. This provision avoids the possibility
of self-representation where a party personally conducts cross-
examination of the opposing party and witnesses, and as commenters
supporting cross-examination pointed out, this provision ensures that
advisors conducting cross-examination will be either professionals
(e.g., attorneys or experienced advocates) or at least adults capable
of understanding the purpose and scope of cross-examination. Although
no Federal circuit court has interpreted constitutional due process to
require recipients to provide counsel to parties in a disciplinary
proceeding, the Department has the authority to effectuate the purposes
of Title IX by prescribing administrative requirements even when those
requirements do not purport to represent a definition of discrimination
under the Title IX statute. The Department has determined that
requiring postsecondary institutions to provide advisors to parties for
the purpose of conducting cross-examination best serves Title IX's non-
discrimination mandate by ensuring that adversarial cross-examination
occurs, thereby ferreting out the truth of sexual harassment
allegations, while protecting sexual harassment victims from personal
confrontation with a perpetrator. At the same time, these final
regulations expressly state that no party's advisor of choice, and no
advisor provided to a party by a recipient, needs to be an attorney,
furthering the Department's intent that the Sec. 106.45 grievance
process is suitable for implementation in an educational institution
without trying to mimic a court trial.
The Department agrees with commenters that Federal case law is
split on the specific issue of whether constitutional due process, or
basic fairness under a contract theory between a private college and
student, requires live cross-examination in sexual misconduct
proceedings. The Department disagrees that Sec. 106.45(b)(6)(i)
represents overreach, violations of federalism, administrative law, or
rule of law, and contends instead that the final regulations prescribe
a grievance process carefully tailored to be no more prescriptive than
necessary to (1) be consistent with constitutional due process and
fundamental fairness, even if Sec. 106.45 includes procedures that
exceed
[[Page 30330]]
minimal guarantees, and (2) address the challenges inherent in
resolving sexual harassment allegations so that recipients are
effectively held responsible for redressing sex discrimination in the
form of sexual harassment in recipients' education programs or
activities. As noted elsewhere in this preamble, when a recipient draws
conclusions about whether sexual harassment occurred in its education
program or activity, the recipient is not merely making an internal,
private decision about its own affairs; rather, the recipient is making
determinations that implicate the recipient's obligation to comply with
a Federal civil rights law that requires a recipient to operate
education programs or activities free from sex discrimination. The
Department therefore has regulatory authority to prescribe a framework
for consistent, reliable determinations regarding responsibility for
sexual harassment under Title IX.
The Department appreciates that some State laws already require
universities to grant cross-examination rights in administrative
hearings that apply to students or employees, but the Department
disagrees that a university may be required to utilize the cross-
examination procedure only if a State law has specifically directed
that result. The fact that some States already require public
universities to allow cross-examination demonstrates that the concept
is familiar to many recipients. The Department is regulating only as
far as necessary to enforce the Federal civil rights law at issue; the
final regulations govern only student and employee misconduct that
constitutes sex discrimination in the form of sexual harassment under
Title IX, and does not purport to require postsecondary institutions to
utilize cross-examination in non-Title IX matters. The procedures in
Sec. 106.45 are consistent with constitutional requirements and best
further the purposes of Title IX, including the right for both parties
to meaningfully be heard by advocating for the party's own narratives
regarding the allegations in a formal complaint of sexual harassment.
A cross-examination procedure does not imply that the credibility
of sexual assault complainants is particularly suspect; rather,
wherever allegations of serious misconduct involve contested facts,
cross-examination is one of the time-tested procedural devices
recognized throughout the U.S. legal system as effective in reaching
accurate determinations resolving competing versions of events. The
Department notes that Sec. 106.45(b)(6)(i) grants the right of cross-
examination equally to complainants and respondents, and cross-
examination is as useful and powerful a truth-seeking tool for a
complainant's benefit as for a respondent, so that a complainant may
direct the decision-maker's attention to implausibility, inconsistency,
unreliability, ulterior motives, and lack of credibility in the
respondent's statements. While the purpose of the Sixth Amendment's
right to confront accusers via cross-examination in a criminal
proceeding may be to protect the criminal defendant from deprivation of
liberty unless guilt is certain beyond a reasonable doubt,\1280\ the
Department recognizes, and the final regulations reflect, that the
purpose of a Title IX grievance process differs from that of a criminal
proceeding. Under Sec. 106.45, cross-examination is not for the
protection only of respondents, but is rather a device for the benefit
of the recipient and both parties, by assisting the decision-maker in
reaching a factually accurate determination regarding responsibility so
that deprivations of a Federal civil right may be appropriately
remedied.
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\1280\ E.g., Niki Kuckes, Civil Due Process, Criminal Due
Process, 25 Yale L. & Pol'y Rev. 1, 14 (2006) (``The body of
criminal due process precedents is highly protective of defendants
in many regards.'').
---------------------------------------------------------------------------
The Department disagrees with commenters who argued that indirect
cross-examination conducted by a neutral college administrator, or a
submitted questions procedure, which is permissible for elementary and
secondary schools under these final regulations,\1281\ can adequately
ensure a fair process and reliable outcome in postsecondary
institutions. Whether or not such a practice would meet constitutional
due process requirements, the Department believes that Sec. 106.45
appropriately and reasonably balances the truth-seeking function of
live, real-time, adversarial cross-examination in the postsecondary
institution context with protections against personal confrontation
between the parties. Thus, regardless of whether the provisions in
Sec. 106.45(b)(6)(i) are required under constitutional due process of
law, the Department believes that these procedures meet or exceed the
due process required under Mathews,\1282\ and the Department is
exercising its regulatory authority under Title IX to adopt measures
that the Department has determined best effectuate the purpose of Title
IX.\1283\ The Sec. 106.45 grievance process requires recipients to
remain neutral and impartial throughout the grievance process,
including during investigation and adjudication. To require a recipient
to step into the shoes of an advocate by asking each party cross-
examination questions designed to challenge that party's plausibility,
credibility, reliability, motives, and consistency would place the
recipient in the untenable position of acting partially (rather than
impartially) toward the parties,\1284\ or else failing to fully probe
the parties' statements for flaws that reflect on the veracity of the
party's statements. The Department does not believe that it is
acceptable or necessary to place recipients in such a position, because
as the Sixth Circuit has outlined, there is an alternative approach
that balances the need for adversarial testing of testimony with
protection against personal confrontation between the parties.
Therefore, Sec. 106.45(b)(6)(i) respects and reinforces the
impartiality of the recipient by requiring adversarial questioning to
be conducted by party advisors (who by definition need not be impartial
because their role is to assist one party and not the other). Precisely
because the recipient must provide a neutral, impartial decision-maker,
the function of adversarial questioning must be undertaken by persons
who owe no duty of impartiality to the parties. Rather, the impartial
decision-maker benefits from observing the questions
[[Page 30331]]
and answers of each party and witness posed by a party's advisor
advocating for that party's particular interests in the case. The
Department believes that Sec. 106.45(b)(6)(i) prescribes an approach
that is both proactive and reactive, for the benefit of the recipient
and both parties; that is, the decision-maker has the right and
responsibility to ask questions and elicit information from parties and
witnesses on the decision-maker's own initiative to aid the decision-
maker in obtaining relevant evidence both inculpatory and exculpatory,
and the parties also have equal rights to present evidence in front of
the decision-maker so the decision-maker has the benefit of perceiving
each party's unique perspectives about the evidence.
---------------------------------------------------------------------------
\1281\ Section 106.45(b)(6)(ii) (expressly providing that
recipients that are not postsecondary institutions need not hold a
hearing (live or otherwise) but must provide the parties equal
opportunity to submit written questions to be asked of the other
party and witnesses).
\1282\ Mathews v. Eldridge, 424 U.S. 319, 321 (1976) (setting
forth a three-part balancing test for evaluating the sufficiency of
due process procedures--the private interest being affected, the
risk of erroneous deprivation of that interest through the
procedures at issue, and the government's interest, including
financial and administrative burden that additional procedures would
entail).
\1283\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979)
(noting that the primary congressional purposes behind Title IX were
``to avoid the use of Federal resources to support discriminatory
practices'' and to ``provide individual citizens effective
protection against those practices.''); see also Gebser, 524 U.S. at
291-92 (refusing to allow plaintiff to pursue a claim under Title IX
based on the school's failure to comply with the Department's
regulatory requirement to adopt and publish prompt and equitable
grievance procedures, stating ``And in any event, the failure to
promulgate a grievance procedure does not itself constitute
`discrimination' under Title IX. Of course, the Department of
Education could enforce the requirement administratively: Agencies
generally have authority to promulgate and enforce requirements that
effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682,
even if those requirements do not purport to represent a definition
of discrimination under the statute.'').
\1284\ Doe v. Miami Univ., 882 F.3d 579, 601 (6th Cir. 2018)
(``School officials responsible for deciding to exclude a student
from school must be impartial.'') (internal quotation marks and
citation omitted).
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The Department notes, with respect to commenters' arguments in
favor of the Harvard Law School's submitted questions model, that a
decision-maker must exclude irrelevant questions, and nothing in the
final regulations precludes a recipient from adopting and enforcing (so
long as it is applied clearly, consistently, and equally to the parties
\1285\) a rule that deems duplicative questions to be irrelevant, or to
impose rules of decorum that require questions to be asked in a
respectful manner; however, any such rules adopted by a recipient must
ensure that all relevant questions and evidence are admitted and
considered (though varying weight or credibility may of course be given
to particular evidence by the decision-maker). Thus, for example, where
the substance of a question is relevant, but the manner in which an
advisor attempts to ask the question is harassing, intimidating, or
abusive (for example, the advisor yells, screams, or physically ``leans
in'' to the witness's personal space), the recipient may appropriately,
evenhandedly enforce rules of decorum that require relevant questions
to be asked in a respectful, non-abusive manner.
---------------------------------------------------------------------------
\1285\ The introductory sentence to Sec. 106.45(b) provides
that any rules a recipient adopts to use in the grievance process,
other than those necessary to comply with Sec. 106.45, must apply
equally to both parties.
---------------------------------------------------------------------------
The Department disagrees that the provision in Sec.
106.45(b)(6)(i) requiring the decision-maker to explain any decision
that a cross-examination question is irrelevant means that submission
of written questions adequately substitutes for real-time, adversarial
questioning. For the reasons explained by the Sixth Circuit, written
submission of questions is no substitute for live cross-
examination.\1286\ The Department agrees with the commenter who argued
that engines come in different shapes and sizes, so that the engine of
cross-examination may appropriately look different in a Title IX
grievance process than in a criminal proceeding. In recognition of
these different purposes and contexts, Sec. 106.45 does not attempt to
incorporate protections constitutionally guaranteed to criminal
defendants such as the Sixth Amendment right to confront accusers face
to face, the right of self-representation, or the right to effective
assistance of counsel.
---------------------------------------------------------------------------
\1286\ E.g., Doe v. Baum, 903 F.3d 575, 582-83 (6th Cir. 2018)
(``Without the back-and-forth of adversarial questioning, the
accused cannot probe the witness's story to test her memory,
intelligence, or potential ulterior motives. . . . Nor can the fact-
finder observe the witness's demeanor under that questioning . . .
For that reason, written statements cannot substitute for cross-
examination. . . . Instead, the university must allow for some form
of live questioning in front of the fact-finder'' though this
requirement can be facilitated through modern technology, for
example by allowing a witness to be questioned via Skype.'')
(internal quotation marks and citations omitted; emphasis in
original).
---------------------------------------------------------------------------
The Department appreciates commenters' proposal to modify the real-
time cross-examination requirement by requiring party advisors to ask
questions one at a time, in full hearing of the other party, while the
decision-maker decides whether or not the question should be answered,
to better screen out irrelevant or abusive questions. We have revised
Sec. 106.45(b)(6)(i) to reflect the commenters' suggestion; this
provision now provides that ``Only relevant cross-examination and other
questions may be asked of a party or witness. Before a complainant,
respondent, or witness answers a cross-examination question, the
decision-maker must first determine whether the question is relevant
and explain any decision to exclude a question as not relevant.'' We
agree that such a provision better ensures that cross-examination in
the out-of-court setting of a campus Title IX proceeding remains
focused only on relevant questions and answers.
The Department appreciates commenters' descriptions of State laws
that have prescribed grievance procedures for campus sexual misconduct
allegations, and of the process utilized by the U.S. Senate during the
confirmation hearings for Justice Kavanaugh. The Department has
considered sexual misconduct disciplinary proceeding models in use by
various individual recipients, prescribed under State laws, used by the
U.S. Senate, and suggested by advocacy organizations, and for the
reasons previously stated, the Department has carefully selected those
procedures in Sec. 106.45 as procedures rooted in principles of due
process and appropriately adapted for application when a formal
complaint of sexual harassment requires reaching accurate outcomes in
education programs or activities.
Changes: We have revised Sec. 106.45(b)(6)(i) to provide that only
relevant cross-examination and other questions may be asked of a party
or witness, and before a complainant, respondent, or witness answers a
cross-examination question, the decision-maker must first determine
whether the question is relevant and explain to the party's advisor
asking cross-examination questions any decision to exclude a question
as not relevant.
Discourages Participation
Comments: Commenters argued that any process that requires cross-
examination will discourage many students, including complainants,
respondents, and witnesses, from participating in a Title IX grievance
process.\1287\ Commenters similarly argued that overseeing cross-
examination will discourage recipients' employees, staff, and
volunteers from serving as decision-makers or party advisors. At least
one commenter argued that undocumented students, and LGBTQ students,
will be particularly deterred from reporting sexual assault because
cross-examination will make Title IX proceedings more legalistic and
undocumented students, and LGBTQ students, are already wary of the
criminal justice system.
---------------------------------------------------------------------------
\1287\ Commenters cited to information regarding reasons for not
reporting such as the data noted in the ``Reporting Data''
subsection of the ``General Support and Opposition'' section of this
preamble, in support of arguments that fear of the ordeal of a
potential trial already discourages many sexual assault victims from
reporting to law enforcement, and making Title IX grievance
processes more court-like by requiring cross-examination will have a
similar chilling effect on reporting sexual assault to universities.
---------------------------------------------------------------------------
Discussion: The Department understands commenters' concerns that
participation in a formal grievance process may be difficult for
participants, including students and employees. The final regulations
require recipients to notify students and employees of the recipient's
grievance process,\1288\ and to train personnel whom the recipient
designates to serve as a Title IX Coordinator, investigator, decision-
maker, or person who facilitates an
[[Page 30332]]
informal resolution.\1289\ The final regulations require recipients to
allow each party involved in a grievance process to select an advisor
of the party's choice, for the purpose of accompanying, advising, and
assisting the party with navigating the grievance process. The
Department recognizes that the Sec. 106.45 grievance process,
including live hearings and cross-examination at postsecondary
institutions, constitutes a serious, formal process, and these final
regulations ensure that a recipient's educational community is aware of
that process and, when involved in the process, each party has the
right to assistance from an attorney or non-attorney advisor throughout
the process. The final regulations also protect an individual's right
to decide not to participate in a grievance process, by including Sec.
106.71 that prohibits retaliation against any person for exercising
rights under Title IX, whether by participating or refusing to
participate in a Title IX grievance process. While participation in a
formal process may be difficult or challenging for a participant, the
Department believes that sex discrimination in the form of sexual
harassment is a serious matter that warrants a predictable, fair
grievance process with strong procedural protections for both parties
so that reliable determinations regarding responsibility are reached by
the recipient.
---------------------------------------------------------------------------
\1288\ Section 106.8(c) (requiring recipients to adopt and
publish, and send notice of, the recipient's grievance procedures
for complaints of sex discrimination and grievance process for
formal complaints of sexual harassment); Sec. 106.45(b)(2)
(requiring recipients to send written notice to parties involved in
a formal complaint of sexual harassment notice of the recipient's
grievance process).
\1289\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------
While the formality of the Sec. 106.45 grievance process may seem
``legalistic,'' the process is very different from a civil lawsuit or
criminal proceeding, such that Title IX grievance processes retain
their character as administrative proceedings in an educational
environment, focused on resolving allegations that a respondent
committed sex discrimination in the form of sexual harassment against a
complainant. Recipients retain discretion to communicate with their
students and employees (including undocumented students and others who
may be wary of the criminal justice system) about the nature of the
Sec. 106.45 grievance process and the differences between that process
and the criminal justice system, including for example, that the Sec.
106.45 grievance process in a postsecondary institution involves cross-
examination by a party's advisor overseen by a trained decision-maker
with authority to control the live hearing environment to prevent
abusive questioning and make determinations free from bias or sex
stereotypes that may constitute evidence of sex discrimination. To make
it easier for participants to participate in a live hearing, the final
regulations expressly authorize a recipient, in the recipient's
discretion, to allow any or all participants to participate in the live
hearing virtually.
Changes: The final regulations revise Sec. 106.45(b)(6)(i) to
expressly allow a recipient to hold the live hearing virtually, with
technology enabling participants to see and hear each other.
Financial Inequities
Comments: Many commenters argued that requiring cross-examination
will lead to sharp inequities between parties who can afford to hire an
attorney and those who cannot afford an attorney, and the credibility
of a victim's case will be contingent on the effectiveness of the
advisor doing the cross-examination rather than on the merits of the
case. Some commenters asserted that this disparity will disfavor
complainants because if there is a pending criminal case, a respondent
likely will have a court-appointed attorney while a victim is likely to
be left without an attorney. At least one commenter pointed to a study
showing that only three percent of universities provide victims with
legal support.\1290\ Commenters asserted that often it is respondents
who bring lawyers while complainants more often bring non-lawyer
advocates, so requiring advisors to cross-examine will disadvantage
complainants.\1291\ Commenters argued that the financial disparity will
fall hardest on students of color including children of immigrants,
international students, and first-generation students, as they are more
likely to come from an economically disadvantaged background and cannot
afford expensive lawyers. Commenters expressed concern that LGBTQ
students will be at greater financial disadvantage than other students.
---------------------------------------------------------------------------
\1290\ Commenters cited: Kristen N. Jozkowski & Jacquelyn D.
Wiersma[hyphen]Mosley, The Greek System: How Gender Inequality and
Class Privilege Perpetuate Rape Culture, 66 Family Relations 1
(2017).
\1291\ Commenters cited: Sarah Jane Brubaker, Campus-Based
Sexual Assault Victim Advocacy and Title IX: Revisiting Tensions
Between Grassroots Activism and the Criminal Justice System, 14
Feminist Criminology 3 (2018).
---------------------------------------------------------------------------
Discussion: The Department disagrees that the final regulations
create inequity between parties based on the financial ability to hire
a lawyer as a party's advisor of choice. The final regulations clarify
that a party's advisor may be, but is not required to be, an
attorney,\1292\ and clarify that where a recipient must provide a party
with an advisor to conduct cross-examination at a live hearing that
advisor may be of the recipient's choice, must be provided without fee
or charge to the party, and may be, but is not required to be, an
attorney.\1293\ The Department understands that complainants and
respondents may believe that hiring an attorney as an advisor may be
beneficial for the party and that parties often will have different
financial means, but the Sec. 106.45 grievance process is designed to
permit both parties to navigate the process with assistance from any
advisor of choice. The Department disagrees that cross-examination at a
live hearing means that a complainant's case will be contingent on the
effectiveness of the complainant's advisor. Because cross-examination
questions and answers, as well all relevant evidence, is evaluated by a
decision-maker trained to be impartial, the professional qualifications
of a party's advisor do not determine the outcome. The Department
wishes to emphasize that the status of any party's advisor (i.e.,
whether a party's advisor is an attorney or not) must not affect the
recipient's compliance with Sec. 106.45, including the obligation to
objectively evaluate relevant evidence. Thus, determinations regarding
responsibility will turn on the merits of each case, and not on the
professional qualifications of a party's advisor. Regardless of whether
certain demographic groups are more or less financially disadvantaged
and thus more or less likely to hire an attorney as an advisor of
choice, decision-makers in each case must reach determinations based on
the evidence and not solely based on the skill of a party's advisor in
conducting cross-examination. The Department also notes that the final
regulations require a trained investigator to prepare an investigative
report summarizing relevant evidence, and permit the decision-maker on
the decision-maker's own initiative to ask questions and elicit
testimony from parties and witnesses, as part of the recipient's burden
to reach a determination regarding responsibility based on objective
evaluation of all relevant evidence including inculpatory and
exculpatory evidence. Thus, the skill of a party's advisor is not the
only factor in bringing evidence to light for a decision-maker's
consideration.
---------------------------------------------------------------------------
\1292\ Section 106.45(b)(5)(iv).
\1293\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------
The Department disagrees that respondents are advantaged due to
having a court-appointed lawyer for a concurrent criminal case, because
a Title IX grievance process is independent from a criminal case and a
court-appointed lawyer in a criminal
[[Page 30333]]
matter would not be court-appointed to represent the criminal defendant
in a recipient's Title IX grievance process.
The Department disagrees that LGBTQ students are necessarily at a
greater financial disadvantage than other students; however, the final
regulations ensure that all students, including LGBTQ students, have an
equal opportunity to select an advisor of choice.
Changes: The final regulations revise Sec. 106.45(b)(6)(i) to
specify that where a recipient must provide a party with an advisor to
conduct cross-examination at a live hearing, that advisor may be of the
recipient's choice, must be provided without fee or charge to the
party, and may be, but is not required to be, an attorney.
Changes the Nature of the Grievance Process
Comments: Some commenters asserted that cross-examination shifts
the burden of adjudication from the recipient onto the parties. Many
commenters asserted that extensive training will be necessary for
hearing panelists and advisors conducting cross-examination, and
recipients will not have the resources, time, and money to make cross-
examination workable, leading to chaos.\1294\
---------------------------------------------------------------------------
\1294\ Commenters cited: Naomi Mann, Taming Title IX Tensions,
20 Univ. of Pa. J. of Constitutional L. 631, 657 (2018), for the
propositions that requiring mandatory counsel would ``complicate the
proceedings by importing outside legal rules based on adversarial
systems'' such that institutions would need to ``learn to navigate
and utilize these foreign systems'' and that the ``use of counsel
would shift the burden of investigating and proving allegations from
the educational institution to the students[.]''
---------------------------------------------------------------------------
Many commenters argued that requiring adversarial cross-examination
will fundamentally change the nature of educational disciplinary
proceedings, converting them into quasi-legal trials. Commenters argued
that requiring postsecondary institutions to hold live hearings with
cross-examination deprives institutions of the freedom to structure
their processes according to their individual needs, resources, and
educational communities and compels institutions to abandon alternative
models they have carefully developed over many years, constituting an
overly prescriptive mandate that fails to defer to school officials'
expertise in developing adjudication models that are fair, humane, in
alignment with State and Federal laws, and address a recipient's unique
circumstances. Other commenters argued that requiring live hearings
with cross-examination fails to recognize Federal court admonitions
that universities are ill-equipped to handle the formalities and
procedural complexities common to criminal trials, that education is a
university's first priority with adjudication of student disputes ``at
best, a distant second,'' \1295\ and due process does not require a
university to ``transform its classrooms into courtrooms.'' \1296\
---------------------------------------------------------------------------
\1295\ Commenters cited: Doe v. Univ. of Cincinnati, 872 F.3d
393, 400 (6th Cir. 2017).
\1296\ Commenters cited: Id; Doe v. Cummins, 662 F. App'x 437,
448-49 (6th Cir. 2016); Doe v. Univ. of Ky., 860 F.3d 365, 370 (6th
Cir. 2017); Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925-
26 (6th Cir. 1988).
---------------------------------------------------------------------------
One commenter argued that the cross-examination requirement could
violate court-issued restraining orders prohibiting contact between the
parties.
Discussion: The final regulations ensure that the burden of
gathering evidence, and the burden of proof, remain on the recipient,
not on either party.\1297\ While the parties have strong procedural
rights to participate and advocate for their own position throughout
the Sec. 106.45 grievance process, the right to meaningfully
participate does not shift the burden away from the recipient or onto
the parties. The Department notes that while decision-makers must be
trained to serve impartially and avoid prejudgment of the facts at
issue, bias, and conflicts of interest, the final regulations do not
require training for advisors of choice. This is because the recipient
is responsible for reaching an accurate determination regarding
responsibility while remaining impartial, yet a party's ability to rely
on assistance from an advisor should not be limited by imposing
training requirements on advisors, who by definition need not be
impartial because their function is to assist one particular party.
While the Department understands that recipients will need to dedicate
resources to train Title IX personnel, including decision-makers
overseeing live hearings, the benefits of a fair grievance process for
resolving formal complaints of sexual harassment under Title IX
outweigh the costs of training personnel to implement that fair
grievance process. For similar reasons, the benefits of a consistent,
predictable grievance process outweigh commenters' concerns that the
Sec. 106.45 grievance process leaves too little flexibility for
recipients to craft their own processes. As noted elsewhere in this
preamble, when resolving factual allegations of sexual harassment under
Title IX, recipients are not simply applying a recipient's own code of
conduct; rather, recipients are reaching determinations affecting
rights of students and employees under a Federal civil rights law. Far
from turning classrooms into courtrooms, the Sec. 106.45 grievance
process incorporates procedures the Department has determined are most
needed in the Title IX sexual harassment context to result in reliable
outcomes viewed as legitimate by the parties and the public. Cross-
examination in the postsecondary institution context is widely viewed
as a critical part of a fair process, and as such giving both parties
the right to cross-examination improves the reality and perception that
recipients' Title IX grievance processes are fair and legitimate.\1298\
Each aspect of the grievance process, while rooted in principles of due
process, is adapted for implementation by recipients in the context of
education programs or activities, thereby acknowledging that schools,
colleges, and universities exist first and foremost to educate, and not
to mirror courts of law. Thus, for the benefit of all students
including those who are wary of the criminal justice system, a Title IX
grievance process remains a separate, distinct forum.
---------------------------------------------------------------------------
\1297\ Section 106.45(b)(5)(i).
\1298\ See H. Hunter Bruton, Cross-Examination, College Sexual-
Assault Adjudications, and the Opportunity for Tuning up the
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub.
Pol'y 145, 172 (2017) (``[O]ur judicial system and constitutional
law jurisprudence have selected cross-examination as the best legal
innovation for approximating perfect procedural parity. The ability
of the accused to participate in the proceedings against him
prevents the accused from becoming merely the subject of a trial
where inquisitors determine his fate. Similarly, endeavoring for
procedural parity between adversaries increases institutional
legitimacy in the eyes of the accused and society, which some
maintain is a value in and of itself.'') (internal citations
omitted); id. at 173 (cross-examination contributes to both the
fairness and accuracy of a hearing because of its ``ability to
expose errors and contextualize evidence'').
---------------------------------------------------------------------------
The Department disagrees that the final regulations require
recipients to violate court-issued restraining orders. Section
106.45(b)(6)(i) requires recipients to conduct the entire live hearing
(not only cross-examination) with the parties located in separate
rooms, upon any party's request, and cross-examination must be
conducted by a party's advisor and never by the party personally.
Further, the final regulations revise Sec. 106.45(b)(6)(i) to
expressly allow a recipient to hold the live hearing virtually
(including for witness participation), with technology enabling
participants to see and hear each other. Thus, where a court-issued
restraining order prohibits contact between the parties, the final
regulations do not require any in-person proximity between the parties,
or any direct communication between the
[[Page 30334]]
parties (even virtually, using technology).
Changes: None.
Section 106.45(b)(6)(ii) Should Apply to Postsecondary Institutions
Comments: Several commenters argued that because the Department
permits written questioning in elementary and secondary schools, there
is no reason to believe that the same process would not be equally
effective in postsecondary institutions, especially when students of
the same age could be subjected to the two different processes (e.g., a
17 year old high school student, versus a 17 year old college student).
One commenter argued that cross-examination is either important in a
quest for truth or it is not, and that if elementary and secondary
schools have discretion to decide whether cross-examination is
beneficial, postsecondary institutions should have the same discretion.
One commenter stated that community colleges often enroll high school
students in dual enrollment programs, and under the proposed rules a
high school student would face a different process depending on whether
a sexual assault occurred at their high school or at the community
college where they are taking classes.
Commenters argued that the same ``sensitivities associated with age
and developmental ability'' relied on by the Department to justify not
requiring live hearings and cross-examination in elementary and
secondary schools \1299\ remain a consideration with young adults in
college, especially in cases about personal, intimate details of a
sexual nature. Commenters argued that modern neuroscience has
established that adolescence, in terms of brain development, extends
well beyond the teenage years, and the prefrontal cortex--the part of
the brain primarily responsible for executive functioning--typically
does not fully develop until the early to mid-twenties,\1300\ when many
students have already graduated from college and thus until
approximately age 25 students do not function as rational adults and
rely heavily on their emotions when making decisions.\1301\
---------------------------------------------------------------------------
\1299\ Commenters cited: 83 FR 61476.
\1300\ Commenters cited: Heidi Ledford, Who Exactly Counts as an
Adolescent?, Nature (Feb. 21, 2018); Mariam Arain et al., Maturation
of the Adolescent Brain, 9 Neuropsychiatric Disease & Treatment 449,
451 (2013); Lucy Wallis, Is 25 the New Cut-Off Point for Adulthood?,
BBC.com (September 23, 2013).
\1301\ Commenters cited: University of Rochester Medical Center,
Understanding the Teen Brain, https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=1&ContentID=3051.
---------------------------------------------------------------------------
Commenters argued that when OCR conducts an investigation into
violations of Title IX, schools have no right to question witnesses (or
even to know who the witnesses are), and because the Department
nevertheless presumably believes the procedures set out in its OCR Case
Processing Manual are fair and produce reliable results there is no
reason why a recipient needs to include cross-examination of parties
and witnesses in a sexual misconduct case in order to have a fair
process that reaches reliable results.
Commenters noted that Title IX and student conduct experts oppose
the proposed rules' cross-examination requirement and instead favor
submission of written questions or asking questions posed by a neutral
school official, referencing publications from organizations such as
the Association of Title IX Administrators (ATIXA), the Association for
Student Conduct Administration (ASCA), and the American Bar Association
(ABA) Criminal Justice Section. One commenter described a survey the
commenter distributed regarding the proposed rules and stated that out
of the 597 people surveyed, 81 percent disapproved of the proposed
rules' cross-examination requirement. Another commenter pointed to a
different public opinion poll that indicated that 61 percent of those
surveyed agreed that students accused of sexual assault on college
campuses should have the right to cross-examine their accuser.
One commenter suggested that the final regulations should require
the recipient to provide a neutral person to conduct cross-examination
of parties and witnesses. One commenter asked whether parties'
submission of questions to be asked through a hearing board chair
fulfills the proposed rules' cross-examination requirement; whether
students may choose to conduct the cross-examination themselves instead
of through an advisor; and whether a Title IX Coordinator who filed a
formal complaint must then be cross-examined at the hearing.
Discussion: The Department appreciates commenters' support for
Sec. 106.45(b)(6)(ii) making hearings optional and requiring
submission of written questions by parties directed to other parties
and witnesses, in the elementary and secondary school context, and
understands commenters' arguments that the same procedures should apply
in postsecondary institutions. The Department acknowledges that there
is no clear line between the ages of students in elementary and
secondary schools versus in postsecondary institutions (e.g., a 17 year
old might be in high school, or might be in college, or might be dually
enrolled). As discussed in the ``Directed Questions'' section of this
preamble, the Department appreciates commenters' arguments for and
against differences in provisions based on the age of a student versus
differentiating between elementary and secondary schools on the one
hand, and postsecondary institutions on the other hand. The Department
believes that it is desirable, to the extent feasible, to achieve
consistency in application of Title IX rights across all recipients,
because all students participating in education programs or activities
regardless of age deserve the protections of Title IX's non-
discrimination mandate. The Department also believes that with respect
to the unique circumstances presented by sex discrimination in the form
of sexual harassment, a consistent, predictable framework can be
prescribed while also adapting certain procedures for elementary and
secondary schools so that the general framework is more reasonable and
effective for students in elementary and secondary schools, who tend to
be younger than the average college student. Thus, for example, the
final regulations revise the definition of actual knowledge to include
notice of sexual harassment to any employee in the elementary and
secondary school context,\1302\ and revise Sec. 106.45(b)(6)(ii) to
more clearly state that elementary and secondary school recipients do
not need to use a hearing model to adjudicate formal complaints of
sexual harassment.
---------------------------------------------------------------------------
\1302\ Section 106.30 (defining ``Actual knowledge'').
---------------------------------------------------------------------------
Similarly, with respect to cross-examination, the Department has
concluded that the approach utilized for postsecondary institutions,
whereby party advisors conduct cross-examination during a live hearing,
is not necessarily effective in elementary and secondary schools where
most students tend to be under the age of majority and where
(especially for very young students) parents or guardians would likely
exercise a party's rights.\1303\ Therefore, for example, a parent
writing out answers to questions about a sexual harassment incident on
behalf of a second-grade student is likely to be a more reasonable
procedure than
[[Page 30335]]
expecting the second-grader to answer questions in real-time during a
hearing. Conversely, in the postsecondary institution context where
students generally are young adults, such a party can reasonably be
expected to answer questions during a live hearing and to benefit from
the procedural right to question the other party (through the asking
party's advisor). The Department's cross-examination requirement in
postsecondary institutions is based on a practical determination that
cross-examination is a valuable procedural tool benefiting both
parties, whereas in the elementary and secondary school context the
parties are likely to be under the age of majority and would not
necessarily benefit from cross-examination as a procedural device. The
Department notes that current regulations and guidance do not require
consistency between the procedures applied in a high school, and in a
college, such that a 17 year old in high school, or in college, would
face potentially different grievance procedures in these situations;
the final regulations do not increase that discrepancy.
---------------------------------------------------------------------------
\1303\ We have added Sec. 106.6(g) to expressly acknowledge the
legal rights of parents and guardians to act on behalf of
complainants, respondents, and other individuals with respect to
exercise of Title IX rights, including but not limited to the filing
of a formal complaint. The legal right of a parent or guardian to
act on a party's behalf extends throughout the grievance process.
---------------------------------------------------------------------------
The Department acknowledges the research pointed to by commenters
indicating that the brains of young adults are still developing until a
person is in their early or even mid-twenties. However, the laws of
nearly every State recognize a person age 18 or older as capable of
legally acting on the person's own behalf \1304\ (for example, by
entering into binding contracts), and the Department maintains that
individuals developmentally capable enough to enroll in college are
also capable enough to make decisions about and participate in a
grievance process designed to advance the person's rights.\1305\
---------------------------------------------------------------------------
\1304\ E.g., LawServer.com, ``Age of Majority,'' https://www.lawserver.com/law/articles/age-of-majority (``The age of
majority is the legal age established by state law at which a person
is no longer considered a child. In most states, a person has
reached the age of majority at 18. Two states (Alabama and Nebraska)
set the age of majority to be 19 and one, Mississippi, sets the age
of majority at 21.''). The legal voting age in the U.S. is age 18.
USA.Gov, ``Voter Registration Age Requirements By State,'' https://www.usa.gov/voter-registration-age-requirements. The age of consent
to sexual activity varies across States, from age 16 to age 18. See
https://www.ageofconsent.net/states. The ages of licensing
privileges varies across States, for example with respect to
driver's licenses where the age for an unrestricted license ranges
from age 16 to age 18. Very Well Family, ``Driving Age By State,''
https://www.verywellfamily.com/driving-age-by-state-2611172#driving-age-by-state. Similarly, regarding marriage licenses, the age for
marrying without parental consent is age 18 in all states except
Mississippi and Nebraska, where the age is 19, and 21, respectively.
FindLaw.com, ``State-By-State Marriage `Age Of Consent' Laws,''
https://family.findlaw.com/marriage/state-by-state-marriage-age-of-consent-laws.html.
\1305\ For example, when a student is 18 years of age or attends
an institution of postsecondary education, the rights accorded to,
and consent required of, parents under FERPA and its implementing
regulations transfer from the parents to the student. 20 U.S.C.
1232g(d); 34 CFR 99.3; 34 CFR 99.5(a)(1).
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The Department reiterates that in recognition that young adults may
find navigating a grievance process challenging, the final regulations
preserve each party's right to select an advisor of choice to assist
the party. The Department's concern for each party's ability to receive
emotional and personal support though a grievance process is also
discussed in this preamble under Sec. 106.45(b)(5)(iii), providing
that a recipient cannot restrict a party's ability to discuss the
allegations; this applies to a young adult's desire to discuss the
allegations with a parent, friend, or advocate to receive emotional,
practical, or strategic advice and support, as well as the right to
discuss the allegations with a professional (such as a lawyer). The
Department believes that a young adult in college is capable of
participating in a grievance process, including answering questions at
a live hearing, even if the young adult's frontal cortex is still
developing, and the Department respects the legal and policy
determinations of the vast majority of States that have granted legal
rights and responsibilities to young adults age 18 or older. In
recognition that sexual misconduct matters involve sensitive, often
traumatic issues for victims of any age, the final regulations ensure
that any complainant regardless of age can insist that cross-
examination (and the entire live hearing) occur with the parties in
separate rooms, and revise Sec. 106.45(b)(6)(i) further to grant
recipients the discretion to hold the entire live hearing virtually
with use of technology so that witnesses also may appear virtually.
The Department appreciates commenters' observations that the
Department's OCR investigations utilize procedures that do not include
allowing a recipient under investigation for Title IX violations to
cross-examine witnesses interviewed by OCR. For the reasons discussed
in the ``Role of Due Process in the Grievance Process'' section of this
preamble, the Department has determined that the procedures reflected
in Sec. 106.45 represent those procedures most likely to result in
fair, reliable outcomes in the particular context of a recipient's need
to accurately resolve sexual harassment allegations in order to provide
remedies to sexual harassment victims--a context and purpose that
differs from that of the Department's investigation into a recipient's
compliance with Title IX.
The Department acknowledges that various experts in Title IX
matters support a process of posing questions through a hearing officer
or neutral school official, and that public opinion surveys may show
various levels of support or opposition to the idea of cross-
examination in college disciplinary proceedings. However, for the
reasons discussed above, the Department has determined that in the
postsecondary institution context, the tool of cross-examination
benefits both parties and contributes to the truth-seeking purpose of
the Sec. 106.45 grievance process. The Department appreciates
commenters' proposed revision that recipients simply be directed to
give the parties opportunity to challenge credibility and require the
decision-maker to ``reasonably assess credibility.'' The Department
believes that the final regulations accomplish that directive, by
giving the parties equal opportunity to challenge credibility (through
written questions for non-postsecondary institutions, and through
cross-examination for postsecondary institutions) and by obligating the
decision-maker to reach a determination regarding responsibility by
objectively evaluating all relevant evidence. The Department
appreciates a commenter's suggestion that recipients be required to
provide a neutral person to conduct cross-examination on behalf of both
parties. However, for the reasons discussed above, the Department does
not believe that the benefits of adversarial cross-examination can be
achieved when conducted by a person ostensibly designated as a
``neutral'' official. This is because the function of cross-examination
is precisely not to be neutral but rather to point out in front of the
neutral decision-maker each party's unique perspective about relevant
evidence and desire regarding the outcome of the case.
In response to a commenter's question as to whether requiring
written submission of questions at a live hearing would fulfill the
cross-examination requirement described in Sec. 106.45(b)(6)(i), the
final regulations revise that provision to add the phrase ``directly,
orally, and in real time'' to describe how cross-examination must be
conducted, to clarify that submission of written questions, even during
a live hearing, is not compliant with Sec. 106.45(b)(6)(i). In answer
to a commenter's further question, the Department has revised Sec.
106.45(b)(6)(i) to expressly preclude a party from
[[Page 30336]]
conducting cross-examination personally; the only method for conducting
cross-examination is by a party's advisor.
In response to a commenter's question about whether a Title IX
Coordinator must be cross-examined in situations where the Title IX
Coordinator filed the formal complaint that triggered the grievance
process, the final regulations revise Sec. 106.30 defining ``formal
complaint'' to clarify that where a formal complaint is signed by a
Title IX Coordinator, the Title IX Coordinator does not become a party
and must comply with all provisions in Sec. 106.45, including the
training requirement and the avoidance of bias and conflict of
interest. Thus, where the Title IX Coordinator signed the formal
complaint that initiated the grievance process, neither Sec.
106.45(b)(6)(i) nor other provisions in Sec. 106.45 treat the Title IX
Coordinator as a party. Even where the Title IX Coordinator testifies
as a witness, the Title IX Coordinator is still expected to serve
impartially without prejudgment of the facts at issue. The Department
notes that the recipient would not be obligated to provide the Title IX
Coordinator with an advisor because that obligation attaches only where
a party does not have an advisor of choice at a hearing.
Changes: The final regulations add to Sec. 106.45(b)(6)(i) that
cross-examination at a live hearing must be conducted directly, orally,
and in real time by the party's advisor of choice, notwithstanding the
discretion paragraph (b)(5)(iv) to otherwise restrict the extent to
which advisors may participate in the proceedings. The final
regulations further revise Sec. 106.45(b)(6)(i) to provide that
recipients may hold the live hearing virtually, with technology
enabling participants to see and hear each other. The final regulations
revise the definition of ``formal complaint'' in Sec. 106.30 to
clarify that even where a Title IX Coordinator signs a formal
complaint, this does not make the Title IX Coordinator a ``party'' in
the grievance process.
False Accusations Occur Infrequently
Commenters: Many commenters argued that because false allegations
occur infrequently,\1306\ it is unnecessary to give the accused extra
protections like cross-examination; commenters urged the Department to
replace cross-examination with submission of written questions, or
asking questions through a neutral school official, to better protect
survivors instead of protecting a minority of falsely-accused students.
Commenters argued that an adequate regulatory provision would simply
say ``The recipient's grievance procedure must include an opportunity
for parties to challenge the credibility of witnesses and the other
party. The decision-maker must reasonably assess credibility of
witnesses and parties'' thus leaving recipients discretion to decide
how to meet those requirements.
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\1306\ Commenters cited to information regarding infrequency of
false allegations such as the data noted in the ``False
Allegations'' subsection of the ``General Support and Opposition''
section of this preamble.
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Discussion: The Department disagrees that cross-examination in the
Title IX grievance process is intended only to protect respondents
against false allegations; rather, as discussed above, cross-
examination in the Sec. 106.45 grievance process is intended to give
both parties equal opportunity to meaningfully challenge the
plausibility, reliability, credibility, and consistency of the other
party and witnesses so that the outcome of each individual case is more
likely to be factually accurate, reducing the likelihood of either type
of erroneous outcome (i.e., inaccurately finding a respondent to be
responsible, or inaccurately finding a respondent to be non-
responsible). For that reason, we do not believe the alternate
regulatory language suggested by the commenters is sufficient. Despite
commenters' assertions, the Department has not designed these final
regulations to specifically address false allegations, or in response
to any preconceived notions about the frequency of false allegations.
Changes: None.
Excluding Cross-Examination Questions
Comments: Commenters noted that the proposed regulations impose a
duty on recipients to objectively evaluate relevant evidence, and deem
questions about a complainant's prior sexual behavior to be irrelevant
(with two exceptions), but commenters argued that the proposed rules
failed to clarify whether recipients have discretion to exclude
relevant cross-examination questions on other public policy grounds on
which rules of evidence in civil and criminal matters often exclude
evidence, for example, party statements made during mediation
discussions, out of court statements that constitute hearsay, evidence
of a party's general character or prior bad acts, or evidence that is
cumulative, duplicative, or unduly prejudicial. Commenters argued that
the final regulations should either identify admissibility rules in
addition to relevance, or clarify whether decision-makers have the
authority to exclude relevant evidence for these kinds of policy
reasons (or because State law requires exclusion of types of evidence).
Commenters wondered what standards the Department would apply to review
whether the recipient's evidentiary rules comply with these final
regulations, if recipients do have authority to promulgate rules
excluding certain types of evidence. Commenters argued that if
relevance is the only allowable admissibility rule then hearings will
become even more protracted and unwieldy and decision-makers should
thus have discretion to identify appropriate grounds, other than
relevance, for excluding evidence.
Discussion: Commenters correctly observed that the proposed rules
impose a duty on recipients to objectively evaluate all relevant
evidence including inculpatory and exculpatory evidence.\1307\ The
final regulations revise the language in Sec. 106.45(b)(6)(i)-(ii) to
state more clearly that (subject to the two exceptions in those
provisions \1308\) questions and evidence about a complainant's prior
sexual behavior or predisposition are not relevant, bar the use of
information protected by any legally recognized privilege,\1309\ and
provide that a recipient cannot use a party's treatment records without
the party's voluntary, written consent.\1310\ (Pursuant to Sec.
106.45(b)(5)(i), if the party is not an ``eligible student,'' as
defined in 34 CFR 99.3, then the recipient must obtain the voluntary,
written consent of a ``parent,'' as defined in 34 CFR 99.3.) The
Department appreciates the opportunity to clarify here that the final
regulations do not allow a recipient to impose rules of evidence that
result in
[[Page 30337]]
exclusion of relevant evidence; the decision-maker must consider
relevant evidence and must not consider irrelevant evidence.
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\1307\ Section 106.45(b)(1)(ii).
\1308\ As discussed below, the rape shield language in Sec.
106.45(b)(6)(i)-(ii) bars questions or evidence about a
complainant's sexual predisposition (with no exceptions) and about a
complainant's prior sexual behavior subject to two exceptions: If
offered to prove that someone other than the respondent committed
the alleged sexual harassment, or if the question or evidence
concerns sexual behavior between the complainant and the respondent
and is offered to prove consent.
\1309\ Section 106.45(b)(1)(x) (protecting any legally
recognized privileged information from disclosure or use during a
grievance process). This provision would therefore prohibit cross-
examination (or other) questions that seek disclosure of, for
example, information protected by attorney-client privilege.
\1310\ Section 106.45(b)(5)(i) (stating that the recipient
cannot access, consider, disclose, or otherwise use a party's
records that are made or maintained by a physician, psychiatrist,
psychologist, or other recognized professional or paraprofessional
in connection with the provision of treatment to the party, unless
the recipient obtains that party's voluntary, written consent to do
so for a grievance process. If the party is not an ``eligible
student,'' as defined in 34 CFR 99.3 (i.e., FERPA regulations), then
the recipient must obtain the voluntary, written consent of a
``parent,'' as defined in 34 CFR 99.3.).
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The Department appreciates commenters' concerns that comprehensive
rules of evidence adopted in civil and criminal courts throughout the
U.S. legal system apply detailed, complex rules to certain types of
evidence resulting in exclusion of evidence that is otherwise relevant
to further certain public policy values (e.g., exclusion of statements
made during settlement negotiations, exclusion of hearsay subject to
specifically-defined exceptions, exclusion of character or prior bad
act evidence subject to certain exceptions, exclusion of relevant
evidence when its probative value is substantially outweighed by risk
of prejudice, and other admissibility rules). The Department desires to
prescribe a grievance process adapted for an educational environment
rather than a courtroom, and declines to impose a comprehensive,
detailed set of evidentiary rules for resolution of contested
allegations of sexual harassment under Title IX. Rather, the Department
has carefully considered the procedures most needed to result in fair,
accurate, and legitimate outcomes in Title IX grievance processes. To
that end, the Department has determined that recipients must consider
relevant evidence with the following conditions: A complainant's prior
sexual behavior is irrelevant (unless questions or evidence about prior
sexual behavior meet one of two exceptions, as noted above);
information protected by any legally recognized privilege cannot be
used; no party's treatment records may be used without that party's
voluntary, written consent; \1311\ and statements not subject to cross-
examination in postsecondary institutions cannot be relied on by the
decision-maker. The Department notes that where evidence is duplicative
of other evidence, a recipient may deem the evidence not relevant.
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\1311\ Pursuant to Sec. 106.45(b)(5)(i), if the party is not an
``eligible student,'' as defined in 34 CFR 99.3 (i.e., FERPA
regulations), then the recipient must obtain the voluntary, written
consent of a ``parent,'' as defined in 34 CFR 99.3.
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The Department does not believe that requiring recipients to
evaluate relevant evidence results in unfairness or inaccuracy. Unlike
court trials where often the trier of fact consists of a jury of
laypersons untrained in evidentiary matters, the final regulations
require decision-makers to be trained in how to conduct a grievance
process and how to serve impartially, and specifically including
training in how to determine what questions and evidence are relevant.
The fact that decision-makers in a Title IX grievance process must be
trained to perform that role means that the same well-trained decision-
maker will determine the weight or credibility to be given to each
piece of evidence, and the training required under Sec.
106.45(b)(1)(iii) allows recipients flexibility to include substantive
training about how to assign weight or credibility to certain types or
categories of evidence, so long as any such training promotes
impartiality and treats complainants and respondents equally. Thus, for
example, where a cross-examination question or piece of evidence is
relevant, but concerns a party's character or prior bad acts, under the
final regulations the decision-maker cannot exclude or refuse to
consider the relevant evidence, but may proceed to objectively evaluate
that relevant evidence by analyzing whether that evidence warrants a
high or low level of weight or credibility, so long as the decision-
maker's evaluation treats both parties equally \1312\ by not, for
instance, automatically assigning higher weight to exculpatory
character evidence than to inculpatory character evidence. While the
Department will enforce these final regulations to ensure that
recipients comply with the Sec. 106.45 grievance process, including
accurately determining whether evidence is relevant, the Department
notes that Sec. 106.44(b)(2) assures recipients that, when enforcing
these final regulations, the Department will refrain from second
guessing a recipient's determination regarding responsibility based
solely on whether the Department would have weighed the evidence
differently. That provision therefore reinforces the approach to the
grievance process throughout Sec. 106.45 under which a recipient must
objectively evaluate all relevant evidence (inculpatory and
exculpatory) but retains discretion, to which the Department will
defer, with respect to how persuasive a decision-maker finds particular
evidence to be.
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\1312\ The final regulations revise the introductory sentence of
Sec. 106.45(b) to provide: ``Any provisions, rules, or practices
other than those required by Sec. 106.45 that a recipient adopts as
part of its grievance process for handling formal complaints of
sexual harassment as defined in Sec. 106.30, must apply equally to
both parties.''
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Changes: The final regulations revise Sec. 106.45(b)(6)(i)-(ii) to
clarify questions and evidence about the complainant's sexual
predisposition is never relevant and about a complainant's prior sexual
behavior are not relevant with two exceptions: Where the question or
evidence about sexual behavior is offered to prove that someone other
than the respondent committed the alleged misconduct, or where the
question or evidence relates to sexual behavior between the complainant
and respondent and is offered to prove consent. The final regulations
add Sec. 106.45(b)(1)(x) to prevent disclosure or use during a
grievance process of information protected by a legally recognized
privilege. The final regulations revise Sec. 106.45(b)(5)(i) to bar a
recipient from using a party's treatment records without the party's
voluntary, written consent. The final regulations also revise the
introductory sentence of Sec. 106.45(b) to provide that any
provisions, rules, or practices other than those required by Sec.
106.45 that a recipient adopts as part of its grievance process must
apply equally to both parties.
Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must
Provide Live Hearing With Cross-Examination
Self-Representation Versus Cross-Examination Conducted by Advisors
Comments: Some commenters opposed Sec. 106.45(b)(6)(i) because
that provision restricts cross-examination to being conducted by a
party's advisor, foreclosing the option for a respondent (or
complainant) to be self-represented and conduct cross-examination
personally. Commenters argued that the right of self-representation has
a long history under U.S. constitutional law, and that the Supreme
Court has held that States cannot force an attorney on an unwilling
criminal defendant,\1313\ that the Sixth Amendment's right to confront
witnesses applies to the accused, not to lawyers,\1314\ and that
representing oneself affirms the dignity and autonomy of the
accused.\1315\
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\1313\ Commenters cited: Faretta v. Cal., 422 U.S. 806, 816
(1974) (the right to represent oneself stems in part from the
premise that the defense may be made easier if the accused is
permitted to bypass lawyers and conduct the trial himself); id. at
834 (even if a lawyer could more aptly represent an accused, the
advantage of a lawyer's training and experience can be realized only
with the accused's cooperation).
\1314\ Commenters cited: id. at 819-20.
\1315\ Commenters cited: McKaskle v. Wiggins, 465 U.S. 168, 176-
77 (1984).
---------------------------------------------------------------------------
Commenters asserted that the final regulations should be modified
so that ``in the event that the advisor assigned by a recipient is
unacceptable to the respondent, the respondent must have the right to
self-represent in all cross-examinations.''
Some commenters suggested that this provision should be modified to
allow students to confer with their advisors and for advisors to
actively represent the student during any part of a live hearing. At
least one commenter argued
[[Page 30338]]
that students should be allowed to have a confidential advisor, or
confidential advocate, allowed to accompany the party to the hearing,
in addition to an advisor of choice or assigned advisor for cross-
examination purposes.
Some commenters supported the proposed rules' requirement that if a
party does not have an advisor of choice at a hearing, the recipient
would be required to provide an advisor ``aligned with that party'' to
ensure that each party's interest is represented during the hearing. At
least one commenter urged the Department to require that such an
appointed advisor be ``genuinely aligned'' with the party, because
recipient employees appointed as advisors may be loyal to the
institution and not to the party, or may hold ideological beliefs that
align with complainants or respondents.
Many commenters opposed the provision in Sec. 106.45(b)(6)(i) that
requires recipients to provide a party with an advisor to conduct
cross-examination if a party does not have an advisor at a live
hearing. Commenters particularly objected to the language in the NPRM
requiring a recipient-provided advisor to be ``aligned with that
party'' because: Recipients will find it impossible to ensure parity
between the parties; recipients will face additional litigation risks
stemming from the recipient's provision of advisors for parties (such
as claims by parties that the recipient provided an incompetent
advisor, an advisor not sufficiently ``aligned with the party,'' or
ineffective assistance of counsel); the NPRM provided no guidance about
how a recipient should determine whether an advisor is ``aligned with''
a party; especially in smaller institutions, a recipient's obligation
to appoint an advisor who must conduct cross-examination adverse to
another student or employee presents potential conflicts of interest
(particularly because appointed advisors are likely to be
administrators, professors, or other recipient staff who interact with
both parties outside the grievance process) and pitting a recipient's
employee against a recipient's student is antithetical to recipients'
educational mission.\1316\ Commenters argued that requiring recipients
to appoint party-aligned advisors contradicts the expectation that the
recipient is neutral and impartial toward the parties, and that
educational disciplinary processes are not about building a case for or
against a party but simply gathering as much information as possible;
these commenters stated that Sec. 106.45(b)(6)(i) abandons
institutions' processes that are ``built to assemble the voices and
experiences of the parties involved, not the voices of third-party
advisors.''
---------------------------------------------------------------------------
\1316\ Commenters cited studies for the proposition that
frequent, positive interactions with faculty and staff not only
strongly influence academic achievement and scholastic self-concept,
but motivation, institutional retention, and persistence towards a
degree as well, particularly for students of color; commenters
cited, e.g., Meera Komarraju et al., Role of Student-Faculty
Interactions in Developing College Students' Academic Self-Concept,
Motivation, and Achievement, 51 Journal of Coll. Student Development
3 (2010). Commenters cited studies for the proposition that negative
interactions between faculty and students significantly damage
students' self-esteem, academic performance, mental health, and
ultimately, retention and persistence; commenters cited, e.g., Kevin
A. Nadal et al., The Adverse Impact of Racial Microaggressions on
College Students' Self-esteem, 55 Journal of Coll. Student
Development 5 (2014).
---------------------------------------------------------------------------
Commenters asserted that many recipient employees will not wish to
be viewed as providing support or advocacy to one party over another,
including in instances where the advisor believes the party to whom the
advisor is assigned is lying. Commenters asserted that currently, many
recipients provide advisors to parties but such advisors are neutral,
advising a party about the grievance process itself but not advocating
on behalf of the party or serving as a party's proxy, and commenters
argued that instead of requiring assigned advisors to be ``aligned
with'' the party the provision should require that assigned advisors be
knowledgeable about university processes and able to give neutral
advice to the party. Other commenters asserted that this provision
should require recipients to give parties advice about selecting
advisors but not require recipients to provide advisors to parties.
Commenters argued that the final regulations should state that a
party's advisor cannot be a person who exercises any administrative or
academic authority over the other party. Commenters asserted that party
advisors should be required to agree to a code of conduct prohibiting
hostile, abusive, or irrelevant questioning.
Some commenters argued that it is vital that both parties have
advisors of equal competency during the hearing and thus requested that
the final regulations require recipients to appoint attorneys for both
parties, or wherever one party has hired an attorney,\1317\ or upon the
request of a party. Commenters suggested that this provision be
modified to allow any party without an advisor of choice at a hearing
to select an advisor of the party's choice from a panel of advisors
whom the recipient has trained to be familiar with the recipient's
grievance process.
---------------------------------------------------------------------------
\1317\ Commenters cited: Curtis J. Berger & Vivian Berger,
Academic Discipline: A Guide to Fair Process for the University
Student, 99 Colum. L. Rev. 289, 341 (1999) (discussing the right to
counsel in cases involving academic wrongdoing).
---------------------------------------------------------------------------
Other commenters expressed concern that the requirement for
advisors to conduct cross-examination and for recipients to provide
advisors for parties who do not have one risks a de facto ``arms race''
whereby if a respondent hires an attorney, recipients will feel
pressured to hire an attorney for the complainant to ensure equity, and
this will be too costly for many recipients. Commenters similarly
asserted that recipients will feel compelled to ensure that assigned
advisors are attorneys because it will be crucial that a party and an
assigned advisor communicate candidly which requires attorney-client
privilege so that conversations are non-discoverable in subsequent
civil or criminal matters. Commenters argued that it is likely that
State bar associations will find that conducting cross-examination
constitutes practice of law and thus recipients will end up being
required to hire attorneys for parties, and not simply assign non-
attorney advisors.\1318\ Commenters argued that this amounts to a
costly, unfunded mandate that will create a niche market for
litigation-attorney advisors.
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\1318\ Commenters asserted that, for example, in Ohio where the
Sixth Circuit's Baum decision applies, rape crisis advocate centers
who typically have provided pro bono advocates to serve as advisors
of choice for complainants have, because of Baum, forbidden staff to
serve as advisors of choice to prevent claims of unauthorized
practice of law, based on opinions of the Ohio Bar Association and
the American Bar Association. These commenters asserted that the
NPRM would make this result widespread and cut off an avenue of
consistent, informed support that should be available to
complainants.
---------------------------------------------------------------------------
Commenters argued that a party disappointed about the outcome of
the hearing should not be allowed to challenge the adequacy of the
advisor provided by the university, either on appeal or in subsequent
litigation.
Commenters argued that the Department lacks statutory authorization
under Title IX to require recipients to provide advisors to students,
and that such a requirement does not serve to further Title IX's non-
discrimination mandate.
Commenters requested clarification of this provision to answer
questions such as: Who may determine whether an assigned advisor is
aligned with the party, and what factors should be used in making that
determination? Is the assigned advisor expected to assume the party's
version of events is accurate? If one party hires an attorney as an
advisor of choice and the recipient must provide
[[Page 30339]]
an advisor for the other party, must the recipient assign that party an
attorney? Can recipients limit the participation of advisors in a
hearing, other than conducting cross-examination? May a recipient
impose cost or fee limitations on attorneys chosen by parties to make
equity and parity more likely? Could a school allow advisors of choice
but appoint separate advisors to conduct cross-examination? If a party
shows up at a hearing without an advisor, must the recipient stop the
hearing to appoint an advisor for the party? May a decision-maker
punish a party if the party's advisor breaks rules during the hearing?
Can a party decide during a hearing to ``fire'' the assigned advisor?
Can a party delay a hearing by refusing to accept a recipient's
assigned advisor perhaps by arguing that the advisor is not ``aligned
with'' the party? May the party advisors also conduct direct
examination of the party they are advising, or only cross-examination
of the other parties and witnesses? Must a recipient provide an advisor
for a party who is also an employee of the recipient, including at-will
employees? May a recipient require certain training and competency
assessments for assigned advisors? Some commenters asserted that the
final regulations should require training for appointed advisors,
including at a minimum how to conduct cross-examination and how to
respond to cross-examination conducted by an attorney, so that parties
feel adequately represented.
Discussion: The Department understands commenters who argued for a
right of self-representation, but the Department has concluded that
self-representation by parties in a live hearing in the context of a
Title IX adjudication presents substantial risk of diminishing the
effectiveness and benefits of cross-examination while increasing the
probability that parties will feel traumatized by the prospect and
reality of personal confrontation. As explained above, the Department
believes that cross-examination is a valuable tool serving the truth-
seeking function of a Title IX grievance process. However, the right to
cross-examination is not unfettered and the effectiveness of cross-
examination depends on the circumstances presented in many Title IX
sexual harassment cases whereby a complainant and respondent have
alleged and denied commission of traumatic, violative acts. To retain
the benefits of cross-examination in this sensitive, high-stakes
context, the Department has concluded that restrictions on the right of
cross-examination best serve the purposes of a Title IX adjudication.
The context and purpose of a Title IX adjudication differ
significantly from that of a criminal trial. The Sixth Amendment rights
guaranteed to a criminal defendant are not constitutionally guaranteed
to a respondent in a Title IX adjudication,\1319\ and the Department
does not believe that a right of self-representation would best
effectuate the purposes of Title IX. The Department believes that the
final regulations appropriately give respondents and complainants equal
and meaningful opportunity to select their own advisors of choice and
to thereby direct and control the manner by which a party exercises a
right of cross-examination. The final regulations thus do not ``force
an attorney'' onto a respondent (or complainant). Rather, the final
regulations provide as a back-stop that if a party does not (or cannot)
take the opportunity to select an advisor of choice, rather than
conducting cross-examination personally the recipient will provide the
party an advisor for that purpose. A party always retains the right not
to participate in a grievance process, but where the party does wish to
participate and advance the party's interests in the case outcome, with
respect to testing the credibility of testimony via cross-examination,
the party must do this by selecting an advisor of choice, or else
working with an advisor provided to the party (without fee or charge)
by the recipient. The Department notes that the final regulations,
Sec. 106.45(b)(5)(iv) and Sec. 106.45(b)(6)(i), make clear that the
choice or presence of a party's advisor cannot be limited by the
recipient. To meet this obligation a recipient also cannot forbid a
party from conferring with the party's advisor, although a recipient
has discretion to adopt rules governing the conduct of hearings that
could, for example, include rules about the timing and length of breaks
requested by parties or advisors and rules forbidding participants from
disturbing the hearing by loudly conferring with each other.
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\1319\ E.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)
(``Consistent with the civil nature of the proceeding, various
protections that apply in the context of a criminal trial do not
apply in a deportation hearing.'').
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With respect to allowing parties to be accompanied by a
confidential advisor or advocate in addition to a party's chosen or
assigned advisor, the Department notes that Sec. 106.71 states ``The
recipient must keep confidential the identity of any individual who has
made a report or complaint of sex discrimination, including any
individual who has made a report or filed a formal complaint of sexual
harassment, any complainant, any individual who has been reported to be
the perpetrator of sex discrimination, any respondent, and any witness,
except as may be permitted by the FERPA statute or regulations, 20
U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out
the purposes of [34 CFR part 106], including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder'' and
this restriction may limit a recipient's ability to authorize the
parties to be accompanied at the hearing by persons other than
advisors. For example, a person assisting a party with a disability, or
a language interpreter, may accompany a party to the hearing without
violating Sec. 106.71(a) because such a person's presence at the
hearing is required by law and/or necessary to conduct the hearing. The
sensitivity and high stakes of a Title IX sexual harassment grievance
process weigh in favor of protecting the confidentiality of the
identity and parties to the extent feasible (unless otherwise required
by law), and the Department thus declines to authorize that parties may
be accompanied to a live hearing by persons other than the parties'
advisors, or other persons for reasons ``required by law'' as described
above.
The Department is persuaded by commenters' concerns that the
``aligned with that party'' language in this provision posed
unnecessary confusion and potential problems. As a result, the
Department has removed that language from Sec. 106.45(b)(6)(i).
Accordingly, the Department declines to adopt a commenter's suggestion
to specify that the assigned advisor must be ``genuinely aligned'' with
the party. The Department does not believe it is feasible, necessary,
or appropriate to ask recipients to screen potential assigned advisors'
ideological beliefs or ties of loyalty to the recipient. The Department
is persuaded by commenters' concerns that a condition of ``alignment''
with a party exposes recipients to claims by parties that, in the
party's subjective view, an assigned advisor was not sufficiently
``aligned with'' the party, and this open-ended potential to accuse
recipients of violating these regulations does not serve the
Department's interest in prescribing a predictable framework under
which recipients understand and comply with their legal obligations. We
have revised Sec. 106.45(b)(6)(i) to state: ``If a party does not have
an advisor present at the hearing, the recipient must provide without
fee or charge to that
[[Page 30340]]
party an advisor of the recipient's choice, who may be, but is not
required to be, an attorney, to conduct cross-examination on behalf of
that party.'' This directive addresses many of the commenters' concerns
about providing an advisor. By explicitly acknowledging that advisors
provided by a recipient may be--but need not be--attorneys, expressly
stating that the provided advisor is ``of the recipient's choice,'' and
limiting the role of provided advisors to conducting cross-examination
on behalf of a party, the final regulations convey the Department's
intent that a recipient enjoys wide latitude to fulfill this
requirement. Claims by a party, for instance, that a recipient failed
to provide ``effective assistance of counsel'' would not be entertained
by the Department because this provision does not require that advisors
be lawyers providing legal counsel nor does this provision impose an
expectation of skill, qualifications, or competence. An advisor's
cross-examination ``on behalf of that party'' is satisfied where the
advisor poses questions on a party's behalf, which means that an
assigned advisor could relay a party's own questions to the other party
or witness, and no particular skill or qualification is needed to
perform that role. These changes in the final regulations similarly
address commenters' concerns that the assigned advisors need be
``adverse'' to or ``pitted against'' members of the recipient's
community. While an assigned advisor may have a personal or
professional belief in, or dedication to, the position of the party on
whose behalf the advisor conducts cross-examination, such a belief or
dedication is not a requirement to function as the assigned advisor.
Whether a party's cross-examination is conducted by a party's advisor
of choice or by the advisor provided to that party by the recipient,
the recipient itself remains neutral, including the decision-maker's
obligation to serve impartially and objectively evaluate relevant
evidence. The Department emphasizes that advisors of choice, and
advisors provided to a party by the recipient, are not subject to the
requirements of Sec. 106.45(b)(1)(iii) which obligates Title IX
personnel (Title IX Coordinators, investigators, decision-makers, and
persons who facilitate informal resolutions) to serve impartially
without conflicts of interest or bias for or against complainants or
respondents generally, or for or against an individual complainant or
respondent.
The Department understands commenters' point that educational
processes have been designed to let the voices and perspectives of the
parties be heard, and not the voices and perspectives of third-party
advisors. For reasons described above and in Sec. 106.45(b)(5)(iv),
the Department believes that giving each party the opportunity to be
assisted and supported by an advisor of choice yields important
benefits to both parties participating in a grievance process. The
final regulations carefully balance the right of parties to rely on and
be assisted by advisors with the interest of an educational institution
in focusing the institution's process on the institution's own students
and employees rather than on third parties. The final regulations allow
recipients to limit the active participation of advisors, with the one
exception in Sec. 106.45(b)(6)(i) that an advisor must conduct cross-
examination on behalf of a party. As noted above, the Department
believes that the risks of allowing personal confrontation between
parties in sexual harassment cases outweigh the downsides of allowing
advisors to actively participate in the limited role of conducting
cross-examination.
The Department understands commenters' assertions that many
recipient's employees will not wish to serve as party advisors because
they do not want to be viewed as supporting or assisting one party over
the other. The Department notes that Sec. 106.45(b)(6)(i) applies only
to postsecondary institutions, and institutions of higher education
that receive Federal student aid under Title IV of the Higher Education
Act of 1965, as amended, already must comply with the Clery Act, which
permits parties to have advisors of choice, and commenters have noted
that many recipients' practice is to allow parties to choose advisors
from among recipient employees, and that some recipients already
provide advisors to parties. For the reasons explained above, these
final regulations do not change that landscape qualitatively, because
even conducting cross-examination ``on behalf of a party'' need not
mean more than relaying that party's questions to the other parties and
witnesses. That function could therefore equate to serving as a party's
proxy, or advocating for a party, or neutrally relaying the party's
desired questions; this provision leaves recipients and assigned
advisors wide latitude in deciding how to fulfill the role of serving
as an assigned advisor. For the same reason, the Department does not
believe it is necessary to forbid assigned advisors from being persons
who exercise any administrative or academic authority over the other
party; assigned advisors are not obligated to avoid conflicts of
interest and can fulfill the limited role described in Sec.
106.45(b)(6)(i) regardless of the scope of the advisor's other duties
as a recipient's employee.
For reasons described above, the Department retains the requirement
for recipients to provide parties with an advisor to conduct cross-
examination, instead of merely requiring recipients to advise a party
about how to select an advisor. In order to foreclose personal
confrontation between the parties during cross-examination while
preserving the neutrality of the recipient's decision-maker, that
procedure must be conducted by advisors rather than by parties, and
where a party does not take the opportunity to select an advisor of the
party's choice, that choice falls to the recipient. As noted above, the
final regulations do not preclude a recipient from adopting and
applying codes of conduct and rules of decorum to ensure that parties
and advisors, including assigned advisors, conduct cross-examination
questioning in a respectful and non-abusive manner, and the decision-
maker remains obligated to ensure that only relevant questions are
posed during cross-examination.
The Department understands commenters' desire that both parties
have advisors of equal competency during a hearing. However, the
Department does not wish to impose burdens and costs on recipients
beyond what is necessary to achieve a Title IX grievance process with
robust procedural protections leading to a reliable outcome. The
Department believes that giving both parties equal opportunity to
select advisors of choice, who may be, but are not required to be
attorneys, and assuring parties who cannot or do not select their own
advisor that the party can still accomplish cross-examination at a
hearing because the recipient will provide an advisor for that limited
purpose, sufficiently achieves the purpose of a Title IX grievance
process without imposing additional burdens on recipients to hire
attorneys for the parties. Nothing in the final regulations precludes a
recipient from offering to provide attorney representation or non-
attorney advisors to both parties throughout the entire grievance
process or just for a live hearing, though Sec. 106.45(b)(5)(iv)
ensures that parties would retain the right to select their own advisor
of choice and refuse any such offer by a recipient. To allow recipients
to meet their obligations with as much flexibility as possible, the
[[Page 30341]]
Department declines to require recipients to pre-screen a panel of
assigned advisors from which a party could make a selection at a
hearing, or to require provided advisors to receive training from the
recipient. The final regulations do not preclude a recipient from
taking such steps, in the recipient's discretion, and the final
regulations require decision-makers to be trained specifically in
issues of relevance. The Department reiterates that a recipient may
fulfill its obligation to provide an advisor for a party to conduct
cross-examination at a hearing without hiring an attorney to be that
party's advisor, and that remains true regardless of whether the other
party has hired a lawyer as an advisor of choice. The final regulations
do not create an ``arms race'' with respect to the hiring of attorneys
by recipients, and recipients remain free to decide whether they wish
to incur the cost or burden of providing attorneys when they must
provide an advisor to a party at a hearing to conduct cross-
examination. This provision does not impose an unfunded mandate on
recipients because recipients retain discretion whether to incur the
cost of hiring attorney or non-attorney advisors.
The Department does not believe that the final regulations'
expectation for an advisor to ``conduct cross-examination on behalf of
a party'' constitutes the practice of law; a Title IX adjudication is
not a civil or criminal trial so the advisor is not representing a
party in a court of law, and the advisor is not required to perform any
function beyond relaying a party's desired questions to the other party
and witnesses. However, to the extent that a recipient is concerned
that State bar associations do, or may, consider party advisors at a
live hearing to be practicing law, the recipient retains discretion to
select attorneys as assigned party advisors. Whether attorneys become
more involved in Title IX adjudications as a result is not the
Department's concern; the final regulations focus on those procedural
protections necessary to ensure that a Title IX grievance process is
designed to reach accurate determinations.
The Department believes that Sec. 106.45(b)(6)(i), as revised in
the final regulations, addresses commenters' concerns that parties will
challenge the outcome based on the recipient's choice of advisor. This
provision clarifies that the choice of advisor where one must be
provided by the recipient lies in the recipient's sound discretion, and
removes the ``aligned with that party'' criterion so that a party
cannot challenge the recipient's choice by claiming the assigned
advisor was not sufficiently aligned. Whether or not the recipient
complied with this provision is now more objectively determined, i.e.,
by observing whether the assigned advisor ``conducted cross-examination
on behalf of the party'' which in essence only needs to mean relaying
the party's desired questions to the other party and witnesses. The
Department does not have control over claims made by parties against
recipients in private litigation, but clarifies here that this
provision does not impose a burden on the recipient to ensure the
``adequacy'' of an assigned advisor, merely that the assigned advisor
performs the role described in this provision.
The Department disagrees that this provision exceeds the
Department's statutory authority under Title IX. The Department
believes this provision furthers Title IX's non-discrimination mandate
by contributing to a fair grievance process leading to reliable
outcomes, which is necessary in order to ensure that recipients
appropriately remedy sexual harassment occurring in education programs
or activities. The Department is authorized to promulgate rules and
regulations to effectuate the purpose of Title IX, including regulatory
requirements that do not, themselves, purport to represent a definition
of discrimination. Particular requirements of a grievance process are
no different in kind from the regulatory requirements the Supreme Court
has expressly acknowledged fall under the Department's regulatory
authority. For example, the Department's regulations have long required
recipients to have grievance procedures in place even though the
absence of grievance procedures does not, itself, constitute
discrimination,\1320\ because adopting and publishing grievance
procedures for the ``prompt and equitable'' resolution of sex
discrimination \1321\ makes it more likely that a recipient will not
engage in sex discrimination and will remedy any discrimination brought
to the recipient's attention by a student or employee. Similarly, the
Department has carefully considered what procedures appropriately
address allegations of sex discrimination in the form of sexual
harassment and has determined that the Sec. 106.45 grievance process,
including cross-examination conducted through advisors in postsecondary
institutions, effectuates Title IX's non-discrimination mandate by
making it less likely that a recipient will fail to accurately
determine whether a student or employee has been victimized by sexual
harassment and needs remedies to restore or preserve equal access to
the recipient's education programs or activities.
---------------------------------------------------------------------------
\1320\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979)
(noting that the primary congressional purposes behind Title IX were
``to avoid the use of Federal resources to support discriminatory
practices'' and to ``provide individual citizens effective
protection against those practices.''); see also Gebser, 524 U.S. at
291-92 (refusing to allow plaintiff to pursue a claim under Title IX
based on the school's failure to comply with the Department's
regulatory requirement to adopt and publish prompt and equitable
grievance procedures, stating ``And in any event, the failure to
promulgate a grievance procedure does not itself constitute
`discrimination' under Title IX. Of course, the Department of
Education could enforce the requirement administratively: Agencies
generally have authority to promulgate and enforce requirements that
effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682,
even if those requirements do not purport to represent a definition
of discrimination under the statute.'').
\1321\ 34 CFR 106.9; Sec. 106.8(c).
---------------------------------------------------------------------------
The Department appreciates commenters' requests for clarification
of this provision. Some clarification requests have been answered by
the modifications made to this provision, such as removal of the
``aligned with that party'' language and specification that when a
recipient must provide an advisor during a hearing the selection of
that advisor is ``of the recipient's choice'' and the assigned advisor
``may be, but is not required to be, an attorney.''
As to commenters' additional questions about this provision: The
assigned advisor is not required to assume the party's version of
events is accurate, but the assigned advisor still must conduct cross-
examination on behalf of the party. The only limitation on recipients'
discretion to restrict advisors' active participation in proceedings is
this provision's requirement that advisors conduct cross-examination,
so recipients remain free to apply rules (equally applicable to both
parties) restricting advisor participation in non-cross examination
aspects of the hearing. Recipients cannot impose a cost or fee
limitation on a party's advisor of choice and if required to provide a
party with an advisor at a hearing, the recipient may not charge the
party any fee. The final regulations require the recipient to keep
confidential the identity of any individual who has made a report or
complaint of sex discrimination, including any individual who has made
a report or filed a formal complaint of sexual harassment, any
complainant, any individual who has been reported to be the perpetrator
of sex discrimination, any respondent, and any witness, except as may
be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and
34 CFR part 99, or as required by law, or to carry out the purposes of
34 CFR part 106, including the conduct of any hearing. These
confidentiality
[[Page 30342]]
obligations may affect a recipient's ability to offer parties a
recipient-provided advisor to conduct cross-examination in addition to
allowing the parties' advisors of choice to appear at the hearing. The
final regulations do not preclude recipients from adopting a rule that
requires parties to inform the recipient in advance of a hearing
whether the party intends to bring an advisor of choice to the hearing;
but if a party then appears at a hearing without an advisor the
recipient would need to stop the hearing as necessary to permit the
recipient to assign an advisor to that party to conduct cross-
examination. A party cannot ``fire'' an assigned advisor during the
hearing, but if the party correctly asserts that the assigned advisor
is refusing to ``conduct cross-examination on the party's behalf'' then
the recipient is obligated to provide the party an advisor to perform
that function, whether that means counseling the assigned advisor to
perform that role, or stopping the hearing to assign a different
advisor. If a party to whom the recipient assigns an advisor refuses to
work with the advisor when the advisor is willing to conduct cross-
examination on the party's behalf, then for reasons described above
that party has no right of self-representation with respect to
conducting cross-examination, and that party would not be able to pose
any cross-examination questions. Whether advisors also may conduct
direct examination is left to a recipient's discretion (though any rule
in this regard must apply equally to both parties). This provision
applies to parties who are a recipient's employees, including at-will
employees; recipients may not impose training or competency assessments
on advisors of choice selected by parties, but nothing in the final
regulations prevents a recipient from training and assessing the
competency of its own employees whom the recipient may desire to
appoint as party advisors.
The Department declines to require training for assigned advisors
because the goal of this provision is not to make parties ``feel
adequately represented'' but rather to ensure that the parties have the
opportunity for their own view of the case to be probed in front of the
decision-maker. Whether a party views an advisor of choice as
``representing'' the party during a live hearing or not, this provision
only requires recipients to permit advisor participation on the party's
behalf to conduct cross-examination; not to ``represent'' the party at
the live hearing. A recipient may, but is not required to, allow
advisors to ``represent'' parties during the entire live hearing (or,
for that matter, throughout the entire grievance process).\1322\
---------------------------------------------------------------------------
\1322\ Section 106.45(b)(5)(iv).
---------------------------------------------------------------------------
The Department notes that nothing in these final regulations
infringes on a recipient's ability to enforce its own codes of conduct
with respect to conduct other than Title IX sexual harassment, and thus
if a party or advisor ``breaks a recipients' rules'' during a hearing
the recipient retains authority to respond in accordance with its codes
of conduct, so long as the recipient is also complying with all
obligations under Sec. 106.45. If a party's advisor of choice refuses
to comply with a recipient's rules of decorum (for example, by
insisting on yelling at the other party), the recipient may provide
that party with an advisor to conduct cross-examination on behalf of
that party. If a provided advisor refuses to comply with a recipient's
rules of decorum, the recipient may provide that party with a different
advisor to conduct cross-examination on behalf of that party. The
Department also notes that Sec. 106.71 protects participants in a
Title IX grievance process against retaliation so an action taken
against any participant in a hearing may not be taken for the purpose
of interfering with any right or privilege secured by Title IX or
because the individual has participated in any manner in a hearing.
Changes: The Department has revised Sec. 106.45(b)(6)(i) to remove
the phrase ``aligned with that party'' and clarify that if a party does
not have an advisor present at the live hearing, the recipient must
provide without fee or charge to that party an advisor of the
recipient's choice, who may be, but is not required to be, an attorney,
to conduct cross-examination on behalf of that party.
We have also added Sec. 106.71, prohibiting retaliation and
providing in pertinent part that no recipient or other person may
intimidate, threaten, coerce, or discriminate against any individual
for the purpose of interfering with any right or privilege secured by
Title IX or because the individual has made a report or complaint,
testified, assisted, or participated or refused to participate in any
manner in an investigation, proceeding, or hearing; and the recipient
must keep confidential the identity of any individual who has made a
report or complaint of sex discrimination, including any individual who
has made a report or filed a formal complaint of sexual harassment, any
complainant, any individual who has been reported to be the perpetrator
of sex discrimination, any respondent, and any witness, except as
required by the FERPA statute or regulations, 20 U.S.C. 1232g and 34
CFR part 99, or as required by law, or to carry out the purposes of 34
CFR part 106, including the conduct of any investigation or hearing.
Explain Decision To Exclude Questions
Comments: Some commenters supported the requirement in Sec.
106.45(b)(6)(i) that decision-makers explain to the party's advisor
posing a question any decision to exclude a question as not relevant.
Commenters asserted that they have observed Title IX proceedings in
which recipients refused to allow a party's questions to be asked of
the opposing party with no explanation as to how or why the question
was not relevant to the allegations. Commenters asserted that this
requirement may reveal and prevent bias in proceedings by making the
decision-maker explain the rationale for deciding that a question is
not relevant.
Other commenters opposed the requirement that decision-makers
explain any reason for excluding a question as not relevant, arguing
that decision-makers are usually not lawyers or judges and are not
legally trained to make complex rulings, so that requiring on-the-spot
decisions about relevance will expose recipients to legal liability.
Commenters argued that this provision exceeds procedural norms in
criminal courts where rules of procedure do not demand that judges
provide explanation for rulings. Commenters argued that parties should
have the right to appeal wrongful decisions to exclude evidence and
thus it is unnecessary to require decision-makers to explain exclusion
decisions during the hearing. Commenters wondered whether the parties
are allowed to argue with the decision-maker upon hearing a decision-
maker's explanation about the relevance of a question and expressed
concern that protracted arguments over relevance would lengthen
hearings and feel tortuous for students. Commenters expressed concern
that the requirement to explain irrelevancy decisions will
disincentivize decision-makers from properly excluding questions that
violate the rape shield protections.
Commenters proposed that the provision be modified to require
decision-makers to explain the decision to exclude questions in writing
after the hearing rather than during the hearing. Commenters suggested
that the final regulations also give decision-makers the right to
screen questions before the hearing so the decision-maker has adequate
time to consider whether the questions are relevant. Commenters
wondered what type of information a
[[Page 30343]]
decision-maker is required to give to meet this provision. Commenters
argued this provision is meaningless because if a decision-maker
decides a question is irrelevant, presumably the decision-maker
believes the question does not tend to prove the matter at issue and
thus, telling the decision-maker to state self-evidently during the
hearing: ``This question is not relevant because it is not relevant''
adds no value to the proceeding and only allows party advisors to bog
down the hearing by demanding that rote explanation.
Discussion: The Department agrees with commenters that a decision-
maker's refusal to explain why questions are excluded has caused
problems with the accuracy and perception of legitimacy of recipients'
Title IX proceedings and thus believes that this provision reasonably
prevents those problems and helps ensure that decision-makers are
making relevance determinations without bias for or against
complainants or respondents.
The Department disagrees that this provision requires legal
expertise on the part of a decision-maker. One of the benefits to the
final regulations' refusal to import wholesale any set of rules of
evidence is that the legal sophistication required to navigate rules of
evidence results often from determining the scope of exceptions to
admissibility rules. By contrast, the decision-maker's only evidentiary
threshold for admissibility or exclusion of questions and evidence is
whether the question or evidence is relevant--not whether it would then
still be excluded under the myriad of other evidentiary rules and
exceptions that apply under, for example, the Federal Rules of
Evidence. While this provision does require ``on the spot''
determinations about a question's relevance, the decision-maker must be
trained in how to conduct a grievance process, specifically including
how to determine relevance within the scope of this provision's rape
shield language and the final regulations' protection of privileged
information and parties' treatment records. Contrary to some
commenters' assertions, judges in civil and criminal trials often do
make ``on the spot'' relevance determinations, and while this provision
requires the decision-maker to ``explain'' the decision in a way that
rules of procedure do not require of judges, the Department believes
that this provision will aid parties in having confidence that Title IX
decision-makers are appropriately considering all relevant evidence.
The final regulations contemplate that decision-makers often will be
laypersons, not judges or lawyers. A judge's relevance ruling from the
bench needs no in-the-moment explanation because a judge has the legal
sophistication to have reached a ruling against the backdrop of the
judge's legal knowledge. By contrast, a layperson's determination that
a question is not relevant is made by applying logic and common sense,
but not against a backdrop of legal expertise. Thus, an explanation of
how or why the question was irrelevant to the allegations at issue, or
is deemed irrelevant by these final regulations (for example, in the
case of sexual predisposition or prior sexual behavior information)
provides transparency for the parties to understand a decision-maker's
relevance determinations.
Commenters correctly note that parties may appeal erroneous
relevance determinations, if they affected the outcome, because Sec.
106.45(b)(8) allows the parties equal appeal rights on grounds that
include procedural irregularity that affected the outcome. However,
asking the decision-maker to also explain the exclusion of questions
during the hearing does not affect the parties' appeal rights and may
reduce the number of instances in which a party feels the need to
appeal on this basis because the decision-maker will have explained the
decision during the hearing. The final regulations do not preclude a
recipient from adopting a rule (applied equally to both parties) that
does, or does not, give parties or advisors the right to discuss the
relevance determination with the decision-maker during the hearing. If
a recipient believes that arguments about a relevance determination
during a hearing would unnecessarily protract the hearing or become
uncomfortable for parties, the recipient may adopt a rule that prevents
parties and advisors from challenging the relevance determination
(after receiving the decision-maker's explanation) during the hearing.
The Department does not believe this requirement will negatively
affect a decision-maker's incentive to properly exclude questions under
this provision's rape shield protections. The decision-maker is under
an obligation to exclude such questions and evidence, and to only
evaluate relevant evidence in reaching a determination. Requiring the
decision-maker to explain relevance decisions during the hearing only
reinforces the decision-maker's responsibility to accurately determine
relevance, including the irrelevance of information barred under the
rape shield language. Further, we have revised Sec. 106.45(b)(1)(iii)
to require decision-makers (and investigators) to be trained in issues
of relevance, including how to apply the rape shield protections in
these final regulations.
Requiring the decision-maker to explain decisions about irrelevance
also helps reinforce the provision in Sec. 106.45(b)(1)(iii) that a
decision-maker must not have a bias for or against complaints or
respondents generally or an individual complainant or respondent.
Providing a reason for the decision reveals whether the decision-maker
is maintaining a neutral, objective position throughout the hearing.
The explanation for the decision may reveal any bias for a particular
complainant or respondent or a bias for or against complainants or
respondents generally.
The Department declines to change Sec. 106.45(b)(6)(i) to require
after-hearing explanation of relevance determinations, but nothing in
the final regulations precludes a recipient from adopting a rule that
the decision-maker will, for example, send to the parties after the
hearing any revisions to the decision-maker's explanation that was
provided during the hearing. In order to preserve the benefits of live,
back-and-forth questioning and follow-up questioning unique to cross-
examination, the Department declines to impose a requirement that
questions be submitted for screening prior to the hearing (or during
the hearing); the final regulations revise this provision to clarify
that cross-examination must occur ``directly, orally, and in real
time'' during the live hearing, balanced by the express provision that
questions asked of parties and witnesses must be relevant, and before a
party or witness answers a cross-examination question the decision-
maker must determine relevance (and explain a determination of
irrelevance).
This provision does not require a decision-maker to give a lengthy
or complicated explanation; it is sufficient, for example, for a
decision-maker to explain that a question is irrelevant because the
question calls for prior sexual behavior information without meeting
one of the two exceptions, or because the question asks about a detail
that is not probative of any material fact concerning the allegations.
No lengthy or complicated exposition is required to satisfy this
provision. Accordingly, the Department does not believe this
requirement will ``bog down'' the hearing. We have revised this
provision by moving the requirement for the decision-maker to explain
determinations of irrelevance to be combined with a sentence that did
not appear in the NPRM, instructing the decision-maker to determine the
relevance of a cross-examination
[[Page 30344]]
question before the party or witness answers the question and to
explain any decision to exclude a question as not relevant.
Changes: The Department has revised Sec. 106.45(b)(6)(i) to add
the phrase ``directly, orally, and in real time'' to describe how
cross-examination must be conducted, thereby precluding a requirement
that questions be submitted or screened prior to the live hearing. We
have further revised this provision by moving the requirement for the
decision-maker to explain determinations of irrelevance to be combined
with a sentence that did not appear in the NPRM, instructing the
decision-maker to determine the relevance of a cross-examination or
other question before the party or witness answers the question and to
explain any decision to exclude a question as not relevant. We have
also revised Sec. 106.45(b)(1)(iii) to require training for decision-
makers on issues of relevance, including application of the rape shield
protections in Sec. 106.45(b)(6).
No Reliance on Statements of a Party Who Does Not Submit to Cross-
Examination
Comments: Some commenters supported the provision in Sec.
106.45(b)(6)(i) prohibiting a decision-maker from relying on statements
made by a party or witness who does not submit to cross-examination in
a postsecondary institution live hearing, because this requirement
ensures that only statements that have been tested for credibility, in
the ``crucible'' of cross-examination, will be considered. Commenters
asserted that Title IX sexual misconduct cases often concern
accusations of a ``he said/she said'' nature where accounts differ
between complainant and respondent and corroborating evidence is
inconclusive or non-existent, thus making cross-examined party
statements critical to reaching a fair determination.
Other commenters supported this provision but argued that one
exception should apply: Statements against a party's own interest
should remain admissible even where the party refuses to appear or
testify. Commenters argued that without this change, this provision
incentivizes respondents who have already been convicted criminally not
to appear for hearings because the respondent's absence would ensure
that any admission, such as part of a plea bargain, could not be
considered.
Other commenters opposed the provision that a decision-maker cannot
rely on statements of a party or witness who does not submit to cross-
examination. Some commenters argued that if a party refuses to submit
to cross-examination, the consequence should be dismissal of the
proceeding, not exclusion of the refusing party's statements.\1323\
---------------------------------------------------------------------------
\1323\ Commenters cited: Doe v. Univ. of Cincinnati, 872 F.3d
393, 401-02 (6th Cir. 2017) (``Given the parties' competing claims,
and the lack of corroborative evidence to support or refute Roe's
allegations, the present case left the [recipient] with a choice
between believing an accuser and an accused. Yet, the [recipient]
resolved this problem of credibility without assessing Roe's
credibility. In fact, it decided plaintiff's fate without seeing or
hearing from Roe at all. That is disturbing and, in this case, a
denial of due process.'') (internal quotation marks and citations
omitted).
---------------------------------------------------------------------------
Commenters argued that a respondent may refuse to submit to cross-
examination in a Title IX hearing when criminal charges are also
pending against the respondent due to concerns about self-incrimination
and that this provision should prevent a decision-maker from drawing
any adverse inferences against a respondent based on a respondent's
refusal to submit to cross-examination because a decision by an accused
not to testify has no probative value and is irrelevant to the issue of
culpability. Commenters expressed concern that public institutions
could be opened up to legal challenges alleging violation of
respondents' Fifth Amendment right against self-incrimination because
where a respondent answered some questions, but refused to answer other
questions due to refusal to self-incriminate, the proposed rules would
demand exclusion of all the respondent's statements, even as to the
information about which the respondent was subjected to cross-
examination. Commenters argued this provision is unfair to respondents
because a respondent may not want to appear for a Title IX hearing for
fear that oral testimony could be admitted in a future criminal or
civil proceeding, yet Sec. 106.45(b)(6)(i) will ``all but require''
the adjudicator to make a finding of responsibility against the
respondent if the reporting party testifies, is cross-examined, and is
credible. Other commenters argued that it is unfair that a
complainant's entire statement would be excluded where a respondent
refused to appear and thus the complainant could not be cross-examined
by the respondent's advisor.
Commenters argued that this provision makes cross-examination
mandatory and forces survivors into a Hobson's choice by requiring the
decision-maker to disregard the statement of a complainant who does not
agree to be cross-examined. Commenters argued that it is unfair to
exclude a complainant's statements from consideration when often a
complainant will not wish to submit to cross-examination due to fear of
retaliation by a respondent, or chooses not to participate in a
grievance process initiated against the complainant's wishes (such as
where the Title IX Coordinator signs a formal complaint). Commenters
argued that this provision requires exclusion of a complainant's
statements even where the complainant's absence from a hearing is
because the respondent wrongfully procured the complainant's absence,
in contravention of the doctrine of forfeiture by wrongdoing.\1324\
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\1324\ Commenters cited: Reynolds v. United States, 98 U.S. 145,
158 (1878) for the proposition that forfeiture by wrongdoing is a
doctrine that says a respondent gives up his right to confront the
witness when he has procured that person's absence, and arguing that
the NPRM requires exclusion of a complainant's statements even if
the complainant's absence is due to the respondent's wrongdoing.
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Commenters argued that in criminal cases, the right to cross-
examine the prosecution's hearsay declarants only extends to declarants
who, at the time of their statement, understood they were giving
evidence likely to be used in a later prosecution, and the proposed
regulations thus inappropriately exclude a common category of
statements gathered in Title IX investigations: Statements to friends
and family who are consoling a victim and are not aware that any crime
is under investigation.\1325\ Commenters argued that excluding a
complainant's statement, including the initial formal complaint, just
because a survivor does not want to undergo cross-examination is
prejudicial and not a trauma-informed practice, when even reporting
sexual misconduct requires bravery. Commenters argued that this
provision is punitive when survivors are already required to
participate in an investigation that can last for months. Commenters
argued it is unfair to punish a survivor by denying relief for a
meritorious claim just because key witnesses refuse to testify or
refuse to submit to cross-examination.
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\1325\ Commenters cited: Crawford v. Washington, 541 U.S. 36
(2004).
---------------------------------------------------------------------------
Commenters argued that this provision may make it difficult for
schools to address situations where they know of predators operating on
their campuses, as victim after victim declines to participate in
cross-examination, potentially creating incentives for schools to
coerce unwilling victims into participating in traumatizing processes,
leading to further breakdown in trust between students and their
institutions.
[[Page 30345]]
Commenters argued that the statements of witnesses should not be
excluded due to non-appearance or refusal to submit to cross-
examination, because witnesses may be unavailable for legitimate
reasons such as studying abroad, illness, graduation, out-of-state
residency, class activities, and so forth. Some commenters suggested
that for witnesses (but not parties) written statements or telephonic
testimony should be sufficient.
Commenters argued that parties and witnesses may be unavailable for
a hearing for a variety of reasons unrelated to the reliability of
their statements, including death, or disability that occurs after an
investigation has begun but before the hearing occurs.
Commenters argued that the Federal Rules of Evidence \1326\ allow
out-of-court statements to be admitted in certain circumstances and for
limited purposes, while Sec. 106.45(b)(6)(i) creates a ``draconian''
rule that excludes even relevant, reliable statements, a result that is
particularly unfair in light of the fact that recipients do not have
subpoena powers to compel parties and witnesses to attend hearings.
Commenters argued that courts do not impose cross-examination as a due
process requirement where the legislature has not granted subpoena
power to an administrative body because to do so would allow the
administrative body to act in a manner contrary to its enabling
statute, and public universities do not have subpoena power; thus,
commenters argued, the university cannot be foreclosed from relying on
hearsay testimony of absent witnesses.\1327\ Commenters argued that
this provision should be modified so that a recipient may consider all
information presented during the investigation and hearing regardless
of who appears at the hearing, so that videos, texts, and statements
are all evaluated on their own merits. Commenters argued that this
provision creates a blanket exclusion of hearsay evidence, yet the
Supreme Court has never announced a ``blanket rejection . . . of
administrative reliance on hearsay irrespective of reliability and
probative value'' and hearsay evidence may constitute substantial
evidence supporting an administrative finding.\1328\
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\1326\ Commenters cited: Fed. R. Evid. 804, 805.
\1327\ Commenters cited: Pub. Employees' Ret. Sys. v. Stamps,
898 So.2d 664, 676 (Sup. Ct. Miss. 2005).
\1328\ Commenters cited: Richardson v. Perales, 402 U.S. 389,
407 (1971); Johnson v. United States, 628 F.2d 187, 190-91 (D.C.
Cir. 1980) (``We have rejected a per se approach that brands
evidence as insubstantial solely because it bears the hearsay label.
. . . Instead, we evaluate the weight each item of hearsay should
receive according to the item's truthfulness, reasonableness, and
credibility.'').
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Commenters suggested that this provision be modified so that the
consequence of a party failing to appear or answer questions is a
change of the standard of evidence, not exclusion of the party's
statements, so that if a complainant refuses to testify, the standard
of evidence is increased to the clear and convincing evidence standard,
while if the respondent refuses to testify, the standard of evidence is
decreased to the preponderance of the evidence standard.
Commenters requested clarification that where a respondent fails to
appear for a hearing, the recipient may still enter a default finding
against the respondent and implement protective measures for the
complainant.
Commenters argued that the final regulations should allow for
evidence not subject to cross-examination (``uncrossed'') to be taken
into account ``for what it's worth'' by the decision-maker who may
assign appropriate weight to uncrossed statements rather than
disregarding them altogether, so as to provide more due process and
fundamental fairness to both parties in the search for truth.
Commenters asked for clarification of a number of questions
including: Does this provision exclude only statements made during the
hearing or to all of a party's statements even those made during the
investigation, or prior to a formal complaint being filed? What is the
threshold for not submitting to cross-examination (e.g., if a party
answers by saying ``I don't want to answer that'' or answers several
questions but refuses to answer one particular question, has the party
``submitted to cross-examination'' or not, and does the reason for
refusing to answer matter, for instance where a respondent refuses to
answer due to self-incrimination concerns, or a complainant refuses to
answer due to good faith belief that the question violates rape shield
protections and disagrees with the decision-maker's decision to the
contrary)? Does exclusion of ``any statement'' include, for example,
text messages or email sent by the party especially where one party
submitted to cross-examination and the other did not, but the text
message exchange was between the two parties? Are decision-makers able
to consider information provided in documents during the investigation
stage (e.g., police reports, SANE (sexual assault nurse examiner)
reports etc.), if certain witnesses referenced in those documents
(e.g., police officers and SANE nurses) do not submit to cross-
examination or refuse to answer a specific question during cross-
examination? If a party or witness refuses to answer a question posed
by the decision-maker (not by a party advisor) must the decision-maker
exclude the party's statements? Commenters suggested making this
provision more precise by replacing ``does not submit to cross-
examination'' with ``does not appear for cross-examination.''
Commenters asserted that parties should have the right to ``waive a
question'' without the party's entire statement being disregarded.
Discussion: The Department appreciates commenters' support for this
provision in Sec. 106.45(b)(6)(i) and agrees that it ensures that in
the postsecondary context, only statements that have been tested for
credibility will be considered by the decision-maker in reaching a
determination regarding responsibility. Where a Title IX sexual
harassment allegation does not turn on the credibility of the parties
or witnesses, this provision allows the other evidence to be considered
even though a party's statements are not relied on due to the party's
or witness's non-appearance or refusal to submit to cross-examination.
The Department declines to add exceptions to this provision, such as
permitting reliance on statements against a party's interest.
Determining whether a statement is against a party's interest, and
applying the conditions and exceptions that apply in evidentiary codes
that utilize such a rule,\1329\ would risk complicating a fact-finding
process so that a non-attorney decision-maker--even when given training
in how to impartially conduct a grievance process--may not be equipped
to conduct the adjudication.
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\1329\ E.g., Fed. R. Evid. 804(a) (describing conditions that
constitute ``unavailability'' of a declarant); Fed. R. Evid. 804(b)
(listing various exceptions to hearsay exclusion where declarant is
unavailable).
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The Department declines to change this provision so the consequence
of refusal to submit to cross-examination is dismissal of the case
rather than non-reliance on the refusing party or witness's statement.
Such a change would operate only against complainants' interests
because a respondent could choose to refuse cross-examination knowing
the result would be dismissal (which, presumably, is a positive result
in a respondent's view). This would essentially give respondents the
ability to control the outcome of the hearing, running contrary to the
purpose
[[Page 30346]]
of the final regulations in giving both parties equal opportunity to
meaningfully be heard before an impartial decision-maker reaches a
determination regarding responsibility.
As commenters acknowledged, not all Title IX sexual harassment
allegations rely on party testimony; for example, in some situations
video evidence of the underlying incident is available, and in such
circumstances even if both parties fail to appear or submit to cross-
examination the decision-maker would disregard party statements yet
proceed to evaluate remaining evidence, including video evidence that
does not constitute statements or to the extent that the video contains
non-statement evidence. If a party or witness makes a statement in the
video, then the decision-maker may not rely on the statement of that
party or witness in reaching a determination regarding responsibility.
The Department understands commenters' arguments that courts have noted
the unfairness of reaching a determination without ever probing or
testing the credibility of the complainant.\1330\ But Sec.
106.45(b)(6)(i) does not raise such unfairness, because the central
unfairness is where a decision-maker ``resolved this problem of
credibility'' in favor of the party whose statements remained untested.
The nature of such unfairness is not present under the final
regulations where, if a party does not appear or submit to cross-
examination the party's statement cannot be relied on--this provision
does not allow a decision-maker to ``resolve'' credibility in favor of
a party whose statements remain untested through cross-examination.
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\1330\ See, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 401-
02 (6th Cir. 2017) (``Given the parties' competing claims, and the
lack of corroborative evidence to support or refute Roe's
allegations, the present case left the [recipient] with a choice
between believing an accuser and an accused. Yet, the [recipient]
resolved this problem of credibility without assessing Roe's
credibility. In fact, it decided plaintiff's fate without seeing or
hearing from Roe at all. That is disturbing and, in this case, a
denial of due process.'') (internal quotation marks and citations
omitted); Doe v. Purdue Univ. et al., 928 F.3d 652, 664 (7th Cir.
2019) (finding it ``particularly concerning'' that the university
concluded the complainant ``was the more credible witness--in fact,
that she was credible at all--without ever speaking to her in
person. Indeed, they did not even receive a statement written by
Jane herself, much less a sworn statement.'').
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The Department understands commenters concerns that respondents,
complainants, and witnesses may be absent from a hearing, or may refuse
to submit to cross-examination, for a variety of reasons, including a
respondent's self-incrimination concerns regarding a related criminal
proceeding, a complainant's reluctance to be cross-examined, or a
witness studying abroad, among many other reasons. In response to
commenters' concerns, the Department has revised the proposed
regulations as follows: (1) We have revised Sec. 106.45(b)(6)(i) to
state that where a decision-maker must not rely on an absent or non-
cross examined party or witness's statements, the decision-maker cannot
draw any inferences about the determination regarding responsibility
based on such absence or refusal to be cross-examined; (2) We have
revised Sec. 106.45(b)(6)(i) to grant a recipient discretion to hold
the entire hearing virtually using technology that enables any or all
participants to appear remotely; (3) Sec. 106.71 expressly prohibits
retaliation against any party, witness, or other person exercising
rights under Title IX, including the right to participate or refuse to
participate in a grievance process; (4) Sec. 106.45(b)(3)(ii) grants a
recipient discretion to dismiss a formal complaint, or allegations
therein, where the complainant notifies the Title IX Coordinator in
writing that the complainants wishes to withdraw the allegations, or
the respondent is no longer enrolled or employed by the recipient, or
specific circumstances prevent the recipient from gathering evidence
sufficient to reach a determination. These changes address many of the
concerns raised by commenters stemming from reasons why parties or
witnesses may not wish to participate and the consequences of non-
participation.
It is possible that one party's refusal to submit to cross-
examination could result in the other party's statements remaining
under consideration by the decision-maker even though the refusing
party's statements are excluded (e.g., where one party refuses to
submit to cross-examination, yet that party's advisor cross-examines
the opposing party, whose statements are then considered by the
decision-maker), but the opportunity of the refusing party to conduct
cross-examination of the opposing party ensures that the opposing
party's statements are not considered unless they have been tested via
cross-examination. Because the final regulations preclude a decision-
maker from drawing any inferences about the determination regarding
responsibility based solely on a party's refusal to be cross-examined,
the adjudication can still yield a fair, reliable outcome even where,
for example, the refusing party is a respondent exercising a Fifth
Amendment right against self-incrimination.
Where one party appears at the hearing and the other party does
not, Sec. 106.45(b)(6)(i) still states: ``If a party does not have an
advisor present at the hearing, the recipient must provide without fee
or charge to that party an advisor of the recipient's choice, who may
be, but is not required to be, an attorney, to conduct cross-
examination on behalf of that party.'' Thus, a party's advisor may
appear and conduct cross-examination even when the party whom they are
advising does not appear. Similarly, where one party does not appear
and that party's advisor of choice does not appear, a recipient-
provided advisor must still cross-examine the other, appearing party
``on behalf of'' the non-appearing party, resulting in consideration of
the appearing party's statements but not the non-appearing party's
statements (without any inference being drawn based on the non-
appearance). Because the statements of the appearing party were tested
via cross-examination, a fair, reliable outcome can result in such a
situation.
The Department disagrees that this provision leaves complainants
(or respondents) in a Hobson's choice. The final regulations address a
complainant's fear of retaliation, the inconvenience of appearing at a
hearing, and the emotional trauma of personal confrontation between the
parties. Further, as noted above, if a complainant still does not wish
to appear or be cross-examined, an appointed advisor may conduct cross-
examination of the respondent (if the respondent does appear) so that a
decision-maker only considers the respondent's statements if the
statements have been tested for credibility. Where a grievance process
is initiated because the Title IX Coordinator, and not the complainant,
signed the formal complaint, the complainant who did not wish to
initiate a grievance process remains under no obligation to then
participate in the grievance process, and the Department does not
believe that exclusion of the complainant's statements in such a
scenario is unfair to the complainant, who did not wish to file a
formal complaint in the first place yet remains eligible to receive
supportive measures protecting the complainant's equal access to
education. If the respondent ``wrongfully procures'' a complainant's
absence, for example, through intimidation or threats of violence, and
the recipient has notice of that misconduct by the respondent (which
likely constitutes prohibited retaliation), the recipient must remedy
the retaliation, perhaps by rescheduling the
[[Page 30347]]
hearing to occur at a later time when the complainant may appear with
safety measures in place.
The Department disagrees that this provision needs to be modified
so that a party's statements to family or friends would still be relied
upon even when the party does not submit to cross-examination. Even if
the family member or friend did appear and submit to cross-examination,
where the family member's or friend's testimony consists of recounting
the statement of the party, and where the party does not submit to
cross-examination, it would be unfair and potentially lead to an
erroneous outcome to rely on statements untested via cross-
examination.\1331\ Further, such a modification would likely operate to
incentivize parties to avoid submitting to cross-examination if a
family member or friend could essentially testify by recounting the
party's own statements. The Department understands that courts of law
operate under comprehensive, complex rules of evidence under the
auspices of judges legally trained to apply those rules of evidence
(which often intersect with other procedural and substantive legal
rules, such as rules of procedure, and constitutional rights). Such
comprehensive rules of evidence admit hearsay (generally, out-of-court
statements offered to prove the truth of the matter asserted) under
certain conditions, which differ in criminal and civil trials. Because
Title IX grievance processes are not court proceedings, comprehensive
rules of evidence do not, and need not, apply. Rather, the Department
has prescribed procedures designed to achieve a fair, reliable outcome
in the context of sexual harassment in an education program or activity
where the conduct alleged constitutes sex discrimination under Title
IX. While judges in courts of law are competent to apply comprehensive,
complicated rules of evidence, the Department does not believe that
expectation is fair to impose on recipients, whose primary function is
to provide education, not to resolve disputes between students and
employees.
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\1331\ E.g., Crawford v. Washington, 541 U.S. 36 (2004)
(although decided under the Sixth Amendment's Confrontation Clause
which only applies to criminal trials, the Supreme Court discussed
how the Confrontation Clause stands for the principle that written
statements are no substitute for cross-examination of witnesses in
front of the trier of fact); id. at 49 (noting that cross-examining
the witness who simply reads or recounts the statements of another
witness in no way accomplishes the purposes and benefits of cross-
examination) id. at 50, 51, 53 (``Raleigh was, after all, perfectly
free to confront those who read Cobham's confession in court'')
(referring to the trial of Sir Walter Raleigh as a ``paradigmatic
confrontation violation''). Although the Confrontation Clause does
not apply in a noncriminal trial, the principle of cross-examining
witness before allowing statements to be used is so deeply rooted in
American jurisprudence that ensuring that these final regulations
reflect that fundamental American notion of justice increases party
and public confidence in the legitimacy of Title IX adjudications in
postsecondary institutions.
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Absent importing comprehensive rules of evidence, the alternative
is to apply a bright-line rule that instructs a decision-maker to
either consider, or not consider, statements made by a person who does
not submit to cross-examination. The Department believes that in the
context of sexual harassment allegations under Title IX, a rule of non-
reliance on untested statements is more likely to lead to reliable
outcomes than a rule of reliance on untested statements. If statements
untested by cross-examination may still be considered and relied on,
the benefits of cross-examination as a truth-seeking device will
largely be lost in the Title IX grievance process. Thus, the Department
declines to import a rule of evidence that, for example, allows a
witness's statement to be relied on where the statement was made to
friends or family without awareness that a crime was under
investigation.
The Department notes that the Supreme Court case cited to by some
commenters urging a rule that would essentially allow non-testimonial
statements to be considered without having been tested by cross-
examination, analyzed a judicially-implied hearsay exception in light
of the constitutional (Sixth Amendment's Confrontation Clause) right of
a criminal defendant to confront witnesses; the Court reasoned that the
plain language of the Confrontation Clause refers to ``witnesses,''
that the dictionary definition of a witness is one who ``bears
testimony'' and thus the Confrontation Clause generally does not allow
testimonial statements--such as formal statements, solemn declarations,
or affirmations, intended to prove or establish a fact--to be used
against a criminal defendant unless such statements are made by a
person subject to cross-examination in court, or where the defendant
had a previous opportunity to cross-examine the person making the
statement.\1332\ The Court reasoned that hearsay exceptions as applied
to non-testimonial statements, such as business records, did not raise
the core concern of the Confrontation Clause and, thus, rules of
evidence permitting admission of non-testimonial statements under
specific hearsay exceptions did not raise constitutional
problems.\1333\ While commenters correctly observe that the
Confrontation Clause is concerned with use of testimonial statements
against criminal defendants, even if use of a non-testimonial statement
poses no constitutional problem under the Sixth Amendment, the
statement would still need to meet a hearsay exception under applicable
rules of evidence in a criminal court. For reasons discussed above, the
Department does not wish to impose a complex set of evidentiary rules
on recipients, whether patterned after civil or criminal rules. Even
though a party's statements that are not subject to cross-examination
might be admissible in a civil or criminal trial under rules of
evidence that apply in those contexts, the Department has determined
that such untested statements, whether testimonial or non-testimonial,
should not be relied on in a Title IX grievance process. Reliance on
party and witness statements that have not been tested for credibility
via cross-examination undermines party and public confidence in the
fairness and accuracy of the determinations reached by postsecondary
institutions. This provision need not result in failure to consider
relevant evidence because parties and witnesses retain the opportunity
to have their own statements considered, by submitting to cross-
examination.
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\1332\ Crawford v. Washington, 541 U.S. 36, 50-55 (2004).
\1333\ Id. at 56.
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In cases where a complainant files a formal complaint, and then
does not appear or refuses to be cross-examined at the hearing, this
provision excludes the complainant's statements, including allegations
in a formal complaint. The Department does not believe this is
prejudicial or punitive against a complainant because the final
regulations provide complainants with opportunities to submit to cross-
examination and thus have their statements considered, in ways that
lessen the inconvenience and potential trauma of such a procedure.
Complainants may request (and the recipient must grant the request) for
the live hearing to be held with the parties in separate rooms so as
not to come face to face with the respondent; questioning cannot be
conducted by the respondent personally; the recipient may allow parties
to appear virtually for the live hearing; complainants have the right
to an advisor of choice to support and assist the party throughout the
grievance process; and recipients may establish rules of decorum to
ensure questioning is conducted in a respectful manner. Further,
recipients must offer supportive measures to a complainant
[[Page 30348]]
which may, for example, forbid contact or communication between the
parties. The Department believes that without the credibility-testing
function of cross-examination, whether the complainant's claim is
meritorious cannot be ascertained with sufficient assurance. The
Department understands that complainants (and respondents) often will
not have control over whether witnesses appear and are cross-examined,
because neither the recipient nor the parties have subpoena power to
compel appearance of witnesses. Some absences of witnesses can be
avoided by a recipient thoughtfully working with witnesses regarding
scheduling of a hearing, and taking advantage of the discretion to
permit witnesses to testify remotely. Where a witness cannot or will
not appear and be cross-examined, that person's statements will not be
relied on by the decision-maker, but the Department believes that any
determination reached under this provision will be more reliable than a
determination reached based on statements that have not been tested for
credibility.
The Department notes that the final regulations expressly allow a
recipient to remove a respondent on an emergency basis and do not
prescribe cross-examination as a necessary procedure during the post-
removal opportunity to challenge the removal.\1334\ Recipients may also
implement supportive measures that restrict students' or employees'
contact or communication with others. Recipients thus have avenues for
addressing serial predator situations even where no victim chooses to
participate in a grievance process. A recipient is prohibited from
coercing unwilling victims to participate in a grievance process,\1335\
even where the recipient's goal is to investigate a possible predator
on campus.
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\1334\ Section 106.44(c).
\1335\ Section 106.71 provides: ``No recipient or other person
may intimidate, threaten, coerce, or discriminate against any
individual for the purpose of interfering with any right or
privilege secured by title IX or this part, or because the
individual has made a report or complaint, testified, assisted, or
participated or refused to participate in any manner in an
investigation, proceeding, or hearing under this part.'' (emphasis
added).
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The final regulations grant recipients discretion to allow
participants, including witnesses, to appear at a live hearing
virtually; however, technology must enable all participants to see and
hear other participants, so a telephonic appearance would not be
sufficient to comply with Sec. 106.45(b)(6)(i). For reasons discussed
above, written statements cannot be relied upon unless the witness
submits to cross-examination, and whether a witness's statement is
reliable must be determined in light of the credibility-testing
function of cross-examination, even where non-appearance is due to
death or post-investigation disability. The Department notes that
recipients have discretion to apply limited extensions of time frames
during the grievance process for good cause, which may include, for
example, a temporary postponement of a hearing to accommodate a
disability.
The Department understands commenters' concerns that a blanket rule
against reliance on party and witness statements made by a person who
does not submit to cross-examination is a broader exclusionary rule
than found in the Federal Rules of Evidence, under which certain
hearsay exceptions permit consideration of statements made by persons
who do not testify in court and have not been cross-examined. The
Department understands that postsecondary institutions lack subpoena
power to compel parties or witnesses to appear and testify at a live
hearing. The final regulations do not purport to grant recipients the
authority to compel appearance and testimony. However, where a party or
witness does not appear and is not cross-examined, the statements of
that party or witness cannot be determined reliable, truthful, or
credible in a non-courtroom setting like that of an educational
institution's proceeding that lacks subpoena powers, comprehensive
rules of evidence, and legal professionals. As many commenters noted,
recipients are educational institutions that should not be converted
into de facto courtrooms. The final regulations thus prescribe a
process that simplifies evidentiary complexities while ensuring that
determinations regarding responsibility result from consideration of
relevant, reliable evidence. The Department declines to adopt
commenters' suggestion that instead the decision-maker should be
permitted to rely on statements that are not subject to cross-
examination, if they are reliable; making such a determination without
the benefit of extensive rules of evidence would likely result in
inconsistent and potentially inaccurate assessments of reliability.
Commenters correctly note that courts have not imposed a blanket rule
excluding hearsay evidence from use in administrative proceedings.
However, cases cited by commenters do not stand for the proposition
that every administrative proceeding must be permitted to rely on
hearsay evidence, even where the agency lacks subpoena power to compel
witnesses to appear.\1336\
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\1336\ E.g., Johnson v. United States, 628 F.2d 187, 190-91
(D.C. Cir. 1980) (holding that substantial evidence supported U.S.
Civil Service Commission's termination determination even though it
relied on hearsay statements of three witnesses, where the agency's
procedural rules expressly allowed introduction of witness
statements and the statements were found to be reliable because they
were from disinterested witnesses, consistent with each other, and
the defense had seen the witness statements prior to the hearing);
Richardson v. Perales, 402 U.S. 389, 407, 410 (1971) (Social
Security Administration hearing regarding disability benefits
eligibility did not deprive claimant of due process by relying on
written medical consultant reports, where those written reports were
relevant and the claimant could have compelled the doctors to appear
for cross-examination but did not do so).
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The Department acknowledges that the evidence gathered during an
investigation may be broader than what is ultimately deemed relevant
and relied upon in making a determination regarding responsibility, but
the procedures in Sec. 106.45 are deliberately selected to ensure that
all evidence directly related to the allegations is reviewed and
inspected by the parties, that the investigative report summarizes only
relevant evidence, and that the determination regarding responsibility
relies on relevant evidence. Because party and witness statements so
often raise credibility questions in the context of sexual harassment
allegations, the decision-maker must consider only those statements
that have benefited from the truth-seeking function of cross-
examination. The recipient, and the parties, have equal opportunity
(and, for the recipient, the obligation) to gather and present relevant
evidence including fact and expert witnesses, and face the same
limitations inherent in a lack of subpoena power to compel witness
testimony. The Department believes that the final regulations,
including Sec. 106.45(b)(6)(i), strike the appropriate balance for a
postsecondary institution context between ensuring that only relevant
and reliable evidence is considered while not over-legalizing the
grievance process.
The Department declines to tie reliance on statements that are not
subject to cross-examination to the standard of evidence used. For
reasons discussed in the ``Section 106.45(b)(7)(i) Standard of Evidence
and Directed Question 6'' subsection of the ``Determinations Regarding
Responsibility'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble, the
Department believes that it is appropriate to leave recipients
flexibility to choose between two standards of evidence but has made
[[Page 30349]]
changes in the final regulations to clarify that a recipient's choice
must then apply to all formal complaints of sexual harassment subject
to a Sec. 106.45 grievance process. Making the standard of evidence
dependent on whether a decision-maker relies on party or witness
statements that are not subject to cross-examination would effectively
remove a recipient's discretion to select a standard of evidence, and
would not achieve the benefits of a recipient implementing a
predictable grievance process.
The Department appreciates commenters' requests for clarification
of this provision. As noted above, even where a respondent fails to
appear for a hearing, the decision-maker may still consider the
relevant evidence (excluding statements of the non-appearing party) and
reach a determination regarding responsibility, though the final
regulations do not refer to this as a ``default judgment.'' If a
decision-maker does proceed to reach a determination, no inferences
about the determination regarding responsibility may be drawn based on
the non-appearance of a party. The Department notes that under Sec.
106.45(b)(3)(ii) a recipient may in its discretion, but is not required
to, dismiss a formal complaint where the respondent is no longer
enrolled or employed by the recipient or where specific circumstances
prevent the recipient from gathering evidence sufficient to reach a
determination regarding responsibility (or where a complainant informs
the Title IX Coordinator in writing that the complainant wishes to
withdraw the formal complaint).
The prohibition on reliance on ``statements'' applies not only to
statements made during the hearing, but also to any statement of the
party or witness who does not submit to cross-examination.
``Statements'' 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. Thus, police reports, SANE reports,
medical reports, and other documents and records may not be relied on
to the extent that they contain the statements of a party or witness
who has not submitted to cross-examination. While documentary evidence
such as police reports or hospital records may have been gathered
during investigation \1337\ and, if directly related to the allegations
inspected and reviewed by the parties,\1338\ and to the extent they are
relevant, summarized in the investigative report,\1339\ the hearing is
the parties' first opportunity to argue to the decision-maker about the
credibility and implications of such evidence. Probing the credibility
and reliability of statements asserted by witnesses contained in such
evidence requires the parties to have the opportunity to cross-examine
the witnesses making the statements.
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\1337\ The Department notes that the final regulations add to
Sec. 106.45(b)(5)(i) a provision that restricts a recipient from
accessing or using a party's treatment records without the party's
voluntary, written consent. If the party is not an ``eligible
student,'' as defined in 34 CFR 99.3, then the recipient must obtain
the voluntary, written consent of a ``parent,'' as defined in 34 CFR
99.3.
\1338\ Section 106.45(b)(5)(vi).
\1339\ Section 106.45(b)(5)(vii).
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The Department appreciates the opportunity to clarify here that to
``submit to cross-examination'' means answering those cross-examination
questions that are relevant; the decision-maker is required to make
relevance determinations regarding cross-examination in real time
during the hearing in part to ensure that parties and witnesses do not
feel compelled to answer irrelevant questions for fear of their
statements being excluded. If a party or witness disagrees with a
decision-maker's determination that a question is relevant, during the
hearing, the party or witness's choice is to abide by the decision-
maker's determination and answer, or refuse to answer the question, but
unless the decision-maker reconsiders the relevance determination prior
to reaching the determination regarding responsibility, the decision-
maker would not rely on the witness's statements.\1340\ The party or
witness's reason for refusing to answer a relevant question does not
matter. This provision does apply to the situation where evidence
involves intertwined statements of both parties (e.g., a text message
exchange or email thread) and one party refuses to submit to cross-
examination and the other does submit, so that the statements of one
party cannot be relied on but statements of the other party may be
relied on. If parties do not testify about their own statement and
submit to cross-examination, the decision-maker will not have the
appropriate context for the statement, which is why the decision-maker
cannot consider that party's statements. This provision requires a
party or witness to ``submit to cross-examination'' to avoid exclusion
of their statements; the same exclusion of statements does not apply to
a party or witness's refusal to answer questions posed by the decision-
maker. If a party or witness refuses to respond to a decision-maker's
questions, the decision-maker is not precluded from relying on that
party or witness's statements.\1341\ This is because cross-examination
(which differs from questions posed by a neutral fact-finder)
constitutes a unique opportunity for parties to present a decision-
maker with the party's own perspectives about evidence. This
adversarial testing of credibility renders the person's statements
sufficiently reliable for consideration and fair for consideration by
the decision-maker, in the context of a Title IX adjudication often
overseen by laypersons rather than judges and lacking comprehensive
rules of evidence that otherwise might determine reliability without
cross-examination.
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\1340\ Parties have the equal right to appeal on three bases
including procedural irregularity that affects the outcome, so if a
party disagrees with a decision-maker's relevance determination, the
party has the opportunity to challenge the relevance determination
on appeal. Sec. 106.45(b)(8).
\1341\ The decision-maker still cannot draw any inference about
the determination regarding responsibility based solely on a party's
refusal to answer questions posed by the decision-maker; the final
regulations refer in Sec. 106.45(b)(6)(i) to not drawing inferences
based on refusal to answer ``cross-examination or other questions''
(emphasis added).
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The Department disagrees that the phrase ``does not appear for
cross-examination'' is clearer or leads to better results than this
provision's language, ``does not submit to cross-examination.'' The
former would permit a party or witness to appear but not engage in the
cross-examination procedure, which would not achieve the benefits of
cross-examination discussed above. For similar reasons, the Department
declines to allow a party or witness to ``waive'' a question because
such a rule would circumvent the benefits and purposes of cross-
examination as a truth-seeking tool for postsecondary institutions'
Title IX adjudications.
Changes: The Department has revised Sec. 106.45(b)(6)(i) to
clarify that although a decision-maker cannot rely on the statement of
a party or witness who does not submit to cross-examination, the
decision-maker cannot draw any inference about the determination
regarding responsibility based solely on a party's or witness's absence
from the hearing or refusal to answer cross-examination or other
questions. This provision has been further revised to allow recipients
discretion to hold live hearings with any or all parties, witnesses,
and other participants appearing virtually, with technology enabling
participants simultaneously to see and hear each other. The Department
has also added Sec. 106.71, prohibiting retaliation against any
[[Page 30350]]
person exercising rights under Title IX including participating or
refusing to participate in any grievance process. Section
106.45(b)(3)(ii), added in the final regulations, grants a recipient
discretion to dismiss a formal complaint, or allegations therein, where
the complainant notifies the Title IX Coordinator in writing that the
complainants wishes to withdraw the allegations, or the respondent is
no longer enrolled or employed by the recipient, or specific
circumstances prevent the recipient from gathering evidence sufficient
to reach a determination.
Rape Shield Protections
Comments: Some commenters supported the rape shield protections in
Sec. 106.45(b)(6)(i) (prohibiting questions or evidence about a
complainant's prior sexual behavior or sexual predisposition, with two
exceptions--where evidence of prior sexual behavior is offered to prove
someone other than the respondent committed the alleged offense, or
where prior sexual behavior evidence is specifically about the
complainant and the respondent and is offered to prove consent) because
prohibiting asking about a complainant's sexual history will give
victims more control when bringing claims, and because these provisions
protect victims' privacy.
Some commenters opposed the rape shield protections in Sec.
106.45(b)(6)(i), arguing that the ban on evidence concerning a
complainant's sexual history is too broad because evidence of a
complainant's sexual history with the respondent should also be allowed
to prove motive to fabricate or conceal a sexual interaction, and not
only to prove consent. Commenters argued that Fed. R. Evid. 412 allows
such evidence if the probative value substantially outweighs the danger
of harm to any victim and of unfair prejudice to any party, and because
the rape shield language in Sec. 106.45(b)(6)(i) is based on Fed. R.
Evid. 412, the final regulations should incorporate that exception as
well. Commenters argued that Fed. R. Evid. 412(b)(1)(B) allows sexual
history evidence to be offered by a criminal defendant without
restriction but Fed. R. Evid. 412(b)(2) provides that in civil cases,
sexual history evidence is admissible to prove consent only if its
probative value substantially outweighs the danger of harm and unfair
prejudice to a victim or any party; commenters argued that because a
Title IX grievance process is more analogous to a civil trial than a
criminal trial, the rape shield language in Sec. 106.45(b)(6)(i)-(ii)
should include the limitation contained in Fed. R. Evid. 412(b)(2).
Commenters argued that the prohibition against questions or
evidence about sexual predisposition or sexual history should also
apply to respondents so that the questioning focuses on the allegation
at issue and does not delve into irrelevant details about a
respondent's sexual history. At least one commenter mistakenly
understood this provision to allow questions about a complainant's
sexual history but not allow the same questions about a respondent's
sexual history such that a respondent's propensity to violence or past
behaviors speaking to a pattern could not be considered.
Commenters argued that an additional provision of Fed. R. Evid. 412
should be added into the final regulations: Allowance of ``evidence
whose exclusion would violate the defendant's constitutional rights.''
Other commenters supported the rape shield language but expressed
concern that the protections will be ineffective without comprehensive
rules of evidence. Some commenters cited a study that found lawyers in
many cases routinely attempt to circumvent rape shield
limitations.\1342\ Other commenters argued that because the rape shield
protections are patterned after Fed. R. Evid. 412, the final
regulations should incorporate the explanatory information in the
Advisory Committee notes to Fed. R. Evid. 412 \1343\ so that parties
and decision-makers better understand the parameters of what kind of
questioning is off-limits. Commenters argued that without further
guidance on how to apply the rape shield limitations, the exceptions
contained in this provision may still subject complainants to
unwarranted invasions of privacy, character attacks, and sex
stereotyping, and suggested that the final regulations specify how
recipients should enforce the rape shield protections. Commenters
argued that the two exceptions to the rape shield protections should be
eliminated because having non-legal professionals try to determine the
scope of the exceptions will result in the exceptions swallowing the
rape shield protections. Commenters argued that the evidence exchange
provision in Sec. 106.45(b)(5)(vi) risks negating the rape shield
protections in Sec. 106.45(b)(6)(i)-(ii). Commenters asserted that
because the proposed rules fail to define consent, the scope of the
rape shield protections is unclear.
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\1342\ Commenters cited: Claire McGlynn, Rape Trials and Sexual
History Evidence, 81 J. Crim. L. 5 (2017).
\1343\ Commenters cited: Advisory Committee Notes, Fed. R. Evid.
412, stating sexual behavior ``connotes all activities that involve
actual physical conduct, i.e., sexual intercourse and sexual
contact, or that imply sexual intercourse or sexual contact''
including the victim's use of contraceptives, evidence of the birth
of a child, and sexually transmitted diseases, and that the
definition of sexual behavior also includes ``the behavior of the
mind,'' while ``sexual predisposition'' is defined to include the
victim's ``mode of dress, speech, or life-style.''
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Commenters argued that the two rape shield exceptions are too
favorable to respondents and unfair to complainants because those
exceptions let respondents discuss a complainant's sexual history any
time the respondent wants to point the finger at a third party or show
consent was present due to consent being present in past sexual
interactions, a problem that commenters argued will frequently arise
since a significant number of sexual assaults are committed by intimate
partners.\1344\ Commenters argued that the rape shield exceptions
expose a thinly disguised reworking of the rape myth that women in
sexual harassment cases are so unreliable that they may be mistaken
about who committed the act, and allow slut-shaming (implications that
a woman with an extensive sexual history likely consented to sexual
activity) to be used as a defense to a sexual assault accusation.
Commenters argued that research shows that during sexual assault trials
victims are routinely asked about their sexual history to imply the
presence of consent, often relying on an incorrect assumption that
women with more sexual experience are more likely to make a false
allegation.\1345\
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\1344\ Commenters cited: U.S. Dep't. of Justice, Bureau of
Justice Statistics, Special Report: Rape and Sexual Assault
Victimization Among College-Age Females, 1995-2013 (2016).
\1345\ Commenters cited: Olivia Smith & Tina Skinner, Observing
Court Responses to Victims of Rape and Sexual Assault, 7 Feminist
Criminology 4, 298, 300 (2012).
---------------------------------------------------------------------------
Commenters argued that the ``offered to prove consent'' exception
should be eliminated because past sexual encounters, even with the
respondent, are always irrelevant to issues of consent because valid
consent can only ever be given in the particular moment.\1346\
Commenters asserted that experts believe that there is no evidentiary
theory under which sexual history is relevant to any claim or defense
except when establishing a pattern of inappropriate behavior on the
part of the harasser.\1347\
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\1346\ Commenters cited: 10 U.S.C. 920(g)(8)(a) (governing rape
and sexual assault in the armed forces) (``A current or previous
dating or social or sexual relationship by itself or the manner of
dress of the person involved with the accused in the conduct at
issue does not constitute consent.'').
\1347\ Commenters cited: Linda J. Krieger & Cindi Fox,
Evidentiary Issues in Sexual Harassment Litigation, 1 Berkeley
Women's L. J. 115 (1985); Megan Reidy, Comment: The Impact of Media
Coverage on Rape Shield Laws in High-Profile Cases: Is the Victim
Receiving a ``Fair Trial'', 54 Cath. Univ. L. Rev. 297, 308 (2005).
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[[Page 30351]]
Commenters argued that this provision violates State laws, such as
in New York, that have legislated an affirmative consent standard for
campus sexual misconduct. Commenters asserted that this provision
should: State that evidence of sexual behavior is never allowed to
prove reputation or character (or only allowed if the complainant has
placed the complainant's own reputation or character at issue); \1348\
require that sexual behavior evidence that ostensibly meets one of the
rape shield exceptions be allowed only if a neutral evaluator decides
in advance that the evidence meets an exception and that its probative
value outweighs potential harm or prejudice to the complainant; and
require recipients to inform complainants in advance if such evidence
will be allowed.
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\1348\ Commenters cited: Seth I. Koslow, Rape Shield Laws and
the Social Media Revolution, 29 Touro L. Rev. 3, Art. 19 (2013), for
the proposition that so many students use social media that those
platforms have become a significant means through which a
complainant might be said to have placed their reputation in
controversy or at issue.
---------------------------------------------------------------------------
Commenters objected to use of the phrase ``sexual predisposition''
claiming the phrase harkens back to the past and puts on trial the
sexual practices and identity of the complainant, which have no
relevance to the adjudication of particular allegations.
Commenters wondered if the rape shield protected complainants
during all stages of a grievance process, for example during the
collection of evidence phase or during an informal resolution process,
or only during a live hearing. Commenters stated that the rape shield
provision, though well-intentioned, conflicts with other provisions in
Sec. 106.45 such as allowing the parties during investigation to
review and respond to evidence gathered by the recipient as well as
offer additional evidence during the investigation; these commenters
asserted that while greater transparency in the grievance process is
warranted and welcome, the unfettered right to introduce and review
evidence conflicts with both the rape shield protections in the
proposed rules and with some State laws that also prevent admission of
prior sexual behavior evidence. Commenters argued that respondents
should only be allowed to ask questions, especially about sexual
behavior, after presenting an adequate foundation and where the
questions do not rely on hearsay or speculation.
Commenters asserted that this provision does not accurately mirror
Fed. R. Evid. 412 because the latter allows the evidence where it is
``offered by the defendant to prove consent or if offered by the
prosecutor,'' and commenters argued that the final regulations should
allow prior sexual behavior evidence ``if offered by the defendant to
prove consent or welcomeness, or if offered by the institution or
complainant.'' Commenters argued that this modification would
appropriately allow testimony to be impeached when welcomeness is at
issue in non-sexual assault situations, in addition to where consent is
at issue in sexual violence situations, and would give a complainant or
the institution equal opportunity to use such evidence where
welcomeness or consent is contested. Other commenters argued that the
rape shield language appeared not to take into account the full range
of sexual harassment because under the second prong of the sexual
harassment definition in Sec. 106.30, consent is not an element but
rather the issue might be whether the conduct was unwelcome versus
invited, but, commenters asserted, even if sexual history was relevant
in those situations, the relevance would be outweighed by potential
harm to the complainant and so should be excluded.
Commenters argued that this provision's wording in the NPRM,
referring to ``cross-examination must exclude evidence of the
complainant's sexual behavior or predisposition'' lacked clarity
because questions are not evidence, though questions can lead to
testimony that is evidence, and the provision was thus ambiguous as to
whether the rape shield protections applied solely to ``questions'' or
also to ``evidence'' that concerns a complainant's sexual behavior or
predisposition. Commenters widely used the phrase ``prior sexual
behavior'' or ``prior sexual history'' in reference to the rape shield
provision in Sec. 106.45(b)(6)(i). Commenters noted that some State
laws, for example Maryland and New York, address the same issue with
rules prohibiting ``prior'' sexual history.
Discussion: The Department agrees with commenters that the rape
shield protections serve a critically important purpose in a Title IX
sexual harassment grievance process: Protecting complainants from being
asked about or having evidence considered regarding sexual behavior,
with two limited exceptions. The final regulations clarify that such
questions, and evidence, are not only excluded at a hearing, but are
deemed irrelevant.
The Department disagrees that the rape shield language is too
broad. Scenarios described by commenters, where a respondent might wish
to prove the complainant had a motive to fabricate or conceal a sexual
interaction, do not require admission or consideration of the
complainant's sexual behavior. Respondents in that scenario could probe
a complainant's motive by, for example, inquiring whether a complainant
had a dating or romantic relationship with a person other than the
respondent, without delving into a complainant's sexual behavior;
sexual behavior evidence would remain irrelevant in such circumstances.
Commenters correctly note that the Department adapted the rape shield
language in Sec. 106.45(b)(6)(i) from Fed. R. Evid. 412.\1349\ As with
other determinations about what procedures should be part of a Sec.
106.45 grievance process, the Department carefully considered whether
Fed. R. Evid. 412 would be useful in formulating rape shield provisions
for application in Title IX adjudications. However, the final
regulations do not import wholesale Fed. R. Evid. 412. The Department
believes the protections of the rape shield language remain stronger if
decision-makers are not given discretion to decide that sexual behavior
is admissible where its probative value substantially outweighs the
danger of harm to a victim and unfair prejudice to any party. If the
Department permitted decision-makers to balance ambiguous factors like
``unfair prejudice'' to make admissibility decisions, the final
regulations would convey an expectation that a non-lawyer decision-
maker must possess the legal expertise of judges and lawyers. Instead,
the Department expects decision-makers to apply a single admissibility
rule (relevance), including this provision's specification that sexual
behavior is irrelevant with two concrete exceptions. This approach
leaves the decision-maker discretion to assign weight and credibility
to evidence, but not to deem evidence inadmissible or excluded, except
on the ground of relevance (and
[[Page 30352]]
in conformity with other requirements in Sec. 106.45, including the
provisions discussed above whereby the decision-maker cannot rely on
statements of a party or witness if the party or witness did not submit
to cross-examination, a party's treatment records cannot be used
without the party's voluntary consent, and information protected by a
legally recognized privilege cannot be used).
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\1349\ 83 FR 61476 (regarding Sec. 106.45(b)(6)(i)-(ii), the
NPRM stated ``These sections incorporate language from (and are in
the spirit of) the rape shield protections found in Federal Rule of
Evidence 412, which is intended to safeguard complainants against
invasion of privacy, potential embarrassment, and stereotyping. See
Fed. R. Evid. 412. Advisory Committee's Note. As the Court has
explained, rape shield protections are intended to protect
complainants `from being exposed at trial to harassing or irrelevant
questions concerning their past sexual behavior.' Michigan v. Lucas,
500 U.S. 145, 146 (1991).'').
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The Department declines to extend the rape shield language to
respondents. The Department does not wish to impose more restrictions
on relevance than necessary to further the goals of a Title IX sexual
harassment adjudication, and does not believe that a respondent's
sexual behavior requires a special provision to adequately protect
respondents from questions or evidence that are irrelevant. By
contrast, in order to counteract historical, societal misperceptions
that a complainant's sexual history is somehow always relevant to
sexual assault allegations, the Department follows the rationale of the
Advisory Committee's Note to Fed. R. Evid. 412, and the Supreme Court's
observation in Michigan v. Lucas,\1350\ that rape shield protections
are intended to protect complainants from harassing, irrelevant
questions at trial. The Department cautions recipients that some
situations will involve counter-claims made between two parties, such
that a respondent is also a complainant, and in such situations the
recipient must take care to apply the rape shield protections to any
party where the party is designated as a ``complainant'' even if the
same party is also a ``respondent'' in a consolidated grievance
process.\1351\ The Department clarifies here that the rape shield
language in this provision considers all questions and evidence of a
complainant's sexual predisposition irrelevant, with no exceptions;
questions and evidence about a complainant's prior sexual behavior are
irrelevant unless they meet one of the two exceptions; and questions
and evidence about a respondent's sexual predisposition or prior sexual
behavior are not subject to any special consideration but rather must
be judged like any other question or evidence as relevant or irrelevant
to the allegations at issue.
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\1350\ 500 U.S. 145, 146 (1991) (``Like most States, Michigan
has a `rape-shield' statute designed to protect victims of rape from
being exposed at trial to harassing or irrelevant questions
concerning their past sexual behavior.'') (emphasis added).
\1351\ Section 106.45(b)(4) allows consolidation of formal
complaints, in a recipient's discretion, when allegations arise from
the same facts or circumstances.
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For two reasons, the Department also declines to import the
additional provision in Fed. R. Evid. 412 that would allow in evidence
``whose exclusion would violate the defendant's constitutional
rights.'' First, this exception to the preclusion of sexual behavior
evidence is intended to protect the constitutional rights of criminal
defendants, and respondents in a Title IX grievance process are not due
the same rights as criminal defendants. Second, the Department believes
that the procedures in Sec. 106.45, including the use of relevance as
the only admissibility criterion, ensure that trained, layperson
decision-makers are capable of making relevance determinations and then
evaluating relevant evidence with discretion to decide how persuasive
certain evidence is to a determination regarding responsibility,
whereas imposing a complex set of evidentiary rules would make it less
likely that a non-lawyer would feel competent to be a recipient's
decision-maker. The final regulations permit a wide universe of
evidence that may be ``relevant'' (and thus not subject to exclusion),
and the Department believes it is unlikely that a recipient applying
the Sec. 106.45 grievance process with its robust procedural
protections would be found to have violated any respondent's
constitutional rights, whether under due process of law Supreme Court
cases like Mathews and Goss, or the Sixth Circuit's due process
decision in Baum.\1352\ As discussed above, we have revised Sec.
106.45(b)(6)(i) to direct a decision-maker who must not rely on the
statement of a party who has not appeared or submitted to cross-
examination not to draw any inference about the determination regarding
responsibility based on the party's absence or refusal to be cross-
examined (or refusal to answer other questions, such as those posed by
the decision-maker). This modification provides protection to
respondents exercising Fifth Amendment rights against self-
incrimination (though it applies equally to protect complainants who
choose not to appear or testify).
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\1352\ As acknowledged in Sec. 106.6(d), the Department will
not enforce these regulations in a manner that requires any
recipient to violate the U.S. Constitution, including the First
Amendment, Fifth and Fourteenth Amendment, or any other
constitutional provision. The Department believes that the Sec.
106.45 grievance process allows, and expects, recipients to apply
the grievance process in a manner that avoids violation of any
party's constitutional rights.
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For reasons discussed above, the Department believes that well-
trained decision-makers are fully capable of determining relevance of
questions and evidence, including the special consideration given to a
complainant's sexual history under this provision. Section
106.45(b)(1)(iii) has been revised to require decision-makers to be
trained on issues of relevance, including specifically application of
the rape shield protections. Regardless of studies that show that
lawyers routinely try to circumvent rape shield protections, the
Department expects recipients to ensure that decision-makers accurately
determine the relevance and irrelevance of a complainant's sexual
history in accordance with these regulations. The Department disagrees
that the two exceptions in the rape shield provisions should be
eliminated because non-lawyer decision-makers will misapply this
provision and end up allowing questions and evidence contrary to this
provision. Nothing in the final regulations precludes a recipient from
including in its training of decision-makers information about the
purpose and scope of rape shield language in Fed. R. Evid. 412,
including the Advisory Committee Notes, so long as the training remains
focused on applying the rape shield protections as formulated in these
final regulations.
The Department disagrees that the evidence exchange provision in
Sec. 106.45(b)(5)(vi) negates the rape shield protections in Sec.
106.45(b)(6)(i)-(ii). As noted by the Supreme Court, rape shield
protections generally are designed to protect complainants from
harassing, irrelevant inquiries into sexual behavior at trial.\1353\
The final regulations permit exchange of all evidence ``directly
related to the allegations in a formal complaint'' during the
investigation, but require the investigator to only summarize
``relevant'' evidence in the investigative report (which would exclude
sexual history information deemed by these final regulations to be
``not relevant''), and require the decision-maker to objectively
evaluate only ``relevant'' evidence during the hearing and when
reaching the determination regarding responsibility. To further
reinforce the importance of correct application of the rape shield
protections, we have revised Sec. 106.45(b)(6)(i) to explicitly state
that only relevant questions may be asked, and the decision-maker must
determine the relevance of each cross-examination question before a
party or witness must answer.
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\1353\ Michigan v. Lucas, 500 U.S. 145, 146 (1991) (``Like most
States, Michigan has a `rape-shield' statute designed to protect
victims of rape from being exposed at trial to harassing or
irrelevant questions concerning their past sexual behavior.'')
(emphasis added).
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Commenters correctly observe that the final regulations do not
define ``consent.'' For reasons explained in the
[[Page 30353]]
``Consent'' subsection of the ``Section 106.30 Definitions'' section of
this preamble, the final regulations clarify that the Department will
not require recipients to adopt a particular definition of consent.
This provision in Sec. 106.30 allows recipients flexibility to use a
definition of sexual consent that best reflects the recipient's values
and/or complies with State laws that require recipients to adopt
particular definitions of consent for campus sexual misconduct
proceedings. The second of the two exceptions to the rape shield
protections refers to ``if offered to prove consent'' and thus the
scope of that exception will turn in part on the definition of consent
adopted by each recipient. Decision-makers will be trained in how to
conduct a grievance process and specifically on how to apply the rape
shield protections, which will include the recipient's adopted
definition of consent, and thus the decision-maker will understand how
to apply the rape shield language in accordance with that definition.
Because of the flexibility recipients have under these final
regulations to adopt a definition of consent, the Department disagrees
that the scope of the second exception to the rape shield protections
is too broad or favors respondents. Rather, the scope of the ``offered
to prove consent'' exception is determined in part by a recipient's
definition of consent, which may be broad or narrow at the recipient's
discretion. The Department disagrees that the first exception
(``offered to prove that someone other than the respondent'' committed
the alleged misconduct) is too broad, because in order for that
exception to apply a respondent's contention must be that someone other
than the respondent is the person who committed the sexual harassment;
commenters have informed the Department that this defense is not common
compared to the defense that a sexual interaction occurred but consent
was present, a conclusion buttressed by commenters' assertions that a
significant number of sexual assaults are committed by intimate
partners. When a respondent has evidence that someone else committed
the alleged sexual harassment, a respondent must have opportunity to
pursue that defense, or else a determination reached by the decision-
maker may be an erroneous outcome, mistakenly identifying the nature of
sexual harassment occurring in the recipient's education program or
activity.\1354\
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\1354\ The Department notes that where a decision-maker
determines, for example, that the respondent is not responsible for
the allegations in the formal complaint, but also determines that
the complainant did suffer the alleged sexual harassment but it was
perpetrated by someone other than the respondent, the recipient is
free to provide supportive measures to the complainant designed to
restore or preserve equal access to education.
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Neither of the two exceptions to the rape shield protections
promote the notion that women, or complainants generally, are
unreliable and that they may be mistaken about who committed an
assault, or allow slut-shaming as a defense to sexual assault
accusations. Rather, the first exception applies to the narrow
circumstance where a respondent contends that someone other than the
respondent committed the misconduct, and the second applies narrowly to
allow sexual behavior questions or evidence concerning incidents
between the complainant and respondent if offered to prove consent. The
second exception does not admit sexual history evidence of a
complainant's sexual behavior with someone other than the respondent;
thus, ``slut-shaming'' or implication that a woman with an extensive
sexual history probably consented to sexual activity with the
respondent, is not validated or promoted by this provision. As noted
above, the scope of when sexual behavior between the complainant and
respondent might be relevant to the presence of consent regarding the
particular allegations at issue depends in part on a recipient's
definition of consent. Not all definitions of consent, for example,
require a verbal expression of consent; some definitions of consent
inquire whether based on circumstances the respondent reasonably
understood that consent was present (or absent), thus potentially
making relevant evidence of past sexual interactions between the
complainant and the respondent. The Department reiterates that the rape
shield language in this provision does not pertain to the sexual
predisposition or sexual behavior of respondents, so evidence of a
pattern of inappropriate behavior by an alleged harasser must be judged
for relevance as any other evidence must be.
As discussed above, the Department defers to recipients on a
definition of consent, and thus recipients subject to State laws
imposing particular definitions may comply with those State laws during
a Sec. 106.45 grievance process. The recipient's definition of consent
will determine the scope of the rape shield exception that refers to
``consent.'' The Department does not believe that the provision needs
to expressly state that a complainant's sexual behavior can never be
allowed to prove a complainant's reputation or character; rather, this
provision already deems irrelevant all questions or evidence of a
complainant's prior sexual behavior unless offered to prove that
someone other than the respondent committed the alleged offense or if
the questions or evidence concern specific sexual behavior between the
complainant and respondent and are offered to prove consent. No other
use of a complainant's sexual behavior is authorized under this
provision.
The Department declines to require questions or evidence that may
meet one of the rape shield exceptions to be allowed to be asked or
presented at a hearing only if a neutral evaluator first decides that
one of the two exceptions applies. As discussed above, the decision-
maker will be trained in how to conduct a grievance process, including
how to determine relevance and how to apply the rape shield
protections, and at the live hearing the decision-maker must determine
the relevance of a cross-examination question before a party or witness
must answer. As discussed above, the Department declines to import a
balancing test that would exclude sexual behavior questions and
evidence (even meeting the two exceptions) unless probative value
substantially outweighs potential harm or undue prejudice, because that
open-ended, complicated standard of admissibility would render the
adjudication more difficult for a layperson decision-maker competently
to apply. Unlike the two exceptions in this provision, a balancing test
of probative value, harm, and prejudice contains no concrete factors
for a decision-maker to look to in making the relevance determination.
The Department's use of the phrase ``sexual predisposition'' is
mirrored in Fed. R. Evid. 412; far from indicating intent to harken
back to the past where sexual practices of a complainant were used
against a complainant, the final regulations take a strong position
that questions or evidence of a complainant's ``sexual predisposition''
are simply irrelevant, without exception.
The final regulations clarify the rape shield language to state
that questions and evidence subject to the rape shield protections are
``not relevant,'' and therefore the rape shield protections apply
wherever the issue is whether evidence is relevant or not. As noted
above, this means that where Sec. 106.45(b)(5)(vi) requires review and
inspection of evidence ``directly related to the allegations'' that
universe of evidence is not screened for relevance, but rather is
measured by whether it is ``directly related to the allegations.''
However, the investigative report must
[[Page 30354]]
summarize ``relevant'' evidence, and thus at that point the rape shield
protections would apply to preclude inclusion in the investigative
report of irrelevant evidence. The Department believes these provisions
work consistently and logically as part of the Sec. 106.45 grievance
process, under which all evidence is evaluated for whether it is
directly related to the allegations, evidence summarized in the
investigative report must be relevant, and evidence (and questions)
presented in front of, and considered by, the decision-maker must be
relevant. The Department declines to require respondents to ``lay a
foundation'' before asking questions, or to impose rules excluding
questions based on hearsay or speculation. For reasons described above,
relevance is the sole gatekeeper evidentiary rule in the final
regulations, but decision-makers retain discretion regarding the weight
or credibility to assign to particular evidence. Further, for the
reasons discussed above, while the final regulations do not address
``hearsay evidence'' as such, Sec. 106.45(b)(6)(i) does preclude a
decision-maker from relying on statements of a party or witness who has
not submitted to cross-examination at the live hearing.
The Department notes that the rape shield language does not limit
the ``if offered to prove consent'' exception to when the question or
evidence is offered by the respondent. Rather, such questions or
evidence could be offered by either party, or by the investigator, or
solicited on the decision-maker's own initiative. The Department
appreciates commenters' suggestion that the rape shield exception
regarding ``to prove consent'' apply to proof of ``welcomeness'' so
that it would apply to allegations of sexual harassment that turn on
welcomeness and not on consent of the victim. However, as explained in
the ``Sexual Harassment'' subsection of the ``Section 106.30
Definitions'' section of this preamble, the Department interprets the
``unwelcome'' element in the first and second prongs of the Sec.
106.30 definition of sexual harassment subjectively; that is, if
conduct is unwelcome to the complainant, that is sufficient to support
that element of an allegation of sexual harassment. By contrast, the
final regulations impose a reasonable person standard on the other
elements in the second prong of the Sec. 106.45 definition--whether
the unwelcome conduct was so ``severe, pervasive, and objectively
offensive'' that it ``effectively denied a person equal access'' to
education. The Department therefore declines to extend the rape shield
language to encompass situations where the respondent wishes to prove
the conduct was ``welcome'' as opposed to ``unwelcome.'' The Department
rejects the premise that a respondent may need to use a complainant's
sexual behavior to challenge a complainant's subjective interpretation
of conduct as unwelcome. Respondents facing allegations under the first
or second prong of the Sec. 106.30 definition may defend by, for
example, arguing that the unwelcome conduct was not ``conditioning any
aid or benefit'' on participation in the unwelcome sexual activity, or
that the unwelcome conduct was not ``severe'' or was not ``pervasive,''
etc. A complainant's sexual behavior is simply irrelevant to those
defenses. Contrary to commenters' concerns, the rape shield language
deems irrelevant all questions or evidence of a complainant's sexual
behavior unless offered to prove consent (and it concerns specific
instances of sexual behavior with the respondent); thus, if ``consent''
is not at issue--for example, where the allegations concern solely
unwelcome conduct under the first or second prong of the Sec. 106.30
definition--then that exception does not even apply, and the rape
shield protections would then bar all questions and evidence about a
complainant's sexual behavior, with no need to engage in a balancing
test of whether the value of the evidence is outweighed by harm or
prejudice.
The Department is persuaded by commenters who argued that the
NPRM's wording of the rape shield language lacked clarity as to whether
``exclusion'' applied only to questions, or also to evidence. The
Department has revised this provision in the final regulations to refer
to both questions and evidence, and replace reference to ``exclusion''
with deeming the sexual predisposition and sexual behavior questions or
evidence to be ``not relevant'' (subject to the same two exceptions as
stated in the NPRM). To conform the final regulations with the intent
of the rape shield provision and with commenters' widely understood
view of this provision, we have added the word ``prior'' before
``sexual behavior'' in Sec. 106.45(b)(6)(i), and in Sec.
106.45(b)(6)(ii) that contains the same rape shield language.\1355\
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\1355\ The Department notes that ``prior'' sexual behavior is a
phrase widely used by commenters to discuss rape shield protections,
and commenters noted that various State laws, such as New York and
Maryland, use the word ``prior'' to distinguish a complainant's
sexual behavior that is unrelated to the sexual misconduct
allegations at issue. The Department emphasizes that ``prior'' does
not imply admissibility of questions or evidence about a
complainant's sexual behavior that occurred after the alleged sexual
harassment incident, but rather must mean anything ``prior'' to
conclusion of the grievance process. This aligns with the intent of
Fed. R. Evid. 412, which prohibits evidence of a victim's ``other''
sexual behavior; the Advisory Committee Notes on that rule explain
that use of the word ``other'' is to ``suggest some flexibility in
admitting evidence `intrinsic' to the alleged sexual misconduct.''
The Department chooses to use the phrase ``prior sexual behavior''
rather than ``other sexual behavior'' because based on public
comments, ``prior sexual behavior'' is a widely understood reference
to evidence unrelated to the alleged sexual harassment at issue.
---------------------------------------------------------------------------
Changes: The Department has revised the rape shield language in
Sec. 106.45(b)(6)(i)-(ii) to clarify that questions and evidence about
the complainant's prior sexual behavior or predisposition are not
relevant unless offered to prove that someone other than the respondent
committed the offense or if the sexual history evidence concerns
specific sexual incidents with the respondent and is offered to prove
consent. We have also revised Sec. 106.45(b)(1)(iii) to require
decision-makers to be trained on issues of relevance, including
application of the rape shield protections in Sec. 106.45(b)(6).
Separate Rooms for Cross-Examination Facilitated by Technology;
Directed Question 9
Comments: Some commenters supported the provision in Sec.
106.45(b)(6)(i) that upon request of any party a recipient must permit
cross-examination to occur with the parties located in separate rooms
with technology facilitating the ability of all participants to see and
hear the person answering questions. Commenters asserted that this
provision appropriately acknowledges the intimidating nature of cross-
examination. Commenters also asserted that this provision reaches a
reasonable balance between allowing cross-examination and protecting
victims from personal confrontation with a perpetrator. Some commenters
supported this provision but expressed concern that the live question-
and-answer format, even avoiding face-to-face trauma, will still impose
significant trauma for both parties. Commenters stated that many
recipients already effectively utilize technology to enable parties to
testify at live hearings without being physically present in the same
room at the same time, including asking the non-testifying party to
wait in a separate room listening by telephone or watching by
videoconference while the testifying party is in the same room as the
decision-maker, and then the parties switch rooms with safety measures
imposed so the parties do not encounter each other during transitions.
[[Page 30355]]
At least one commenter opposed this provision, arguing that there
is no substitute for direct eye contact and full view of a person's
mannerisms and gestures, which will not be as effective using
technology, even though face-to-face confrontation may cause trauma to
both complainants and respondents.
Some commenters opposed this provision, asserting that complainants
should not be forced to be ``live streamed'' and instead should have
the right to remain anonymous. Some commenters argued that ``watering
down'' the Sixth Amendment right to face-to-face confrontation just to
avoid traumatizing victims is not appropriate because the Constitution
expects victims to endure the experience of making their accusations
directly in front of an accused \1356\ and the proposed rules do not
even require a threshold showing of the potential for trauma before
granting a request to permit virtual testimony.
---------------------------------------------------------------------------
\1356\ Commenters cited: Maryland v. Craig, 497 U.S. 836, 851
(1990) for the proposition that a limited exception to a criminal
defendant's Sixth Amendment right to confront witnesses was approved
by the Supreme Court in the context of protecting child sex abuse
victims by permitting a child victim to testify via closed circuit
television.
---------------------------------------------------------------------------
Other commenters argued that separating the parties does not
adequately diminish the intimidating, retraumatizing prospect of a live
hearing. Commenters shared personal examples of being cross-examined
during Title IX proceedings and feeling traumatized even with the
respondent located in a separate room; one commenter described being
cross-examined during a hearing with the perpetrator telling each
question to a judge, who then asked the question over Skype if the
judge approved the question, and the commenter stated that even with
technology separating the commenter from the perpetrator, the commenter
was still diagnosed a week later with PTSD (post-traumatic stress
disorder). Commenters argued that survivors of sexual violence will
still be aware that their attacker is witnessing the proceedings and
may feel less safe as a result. At least one commenter argued that
accommodating a complainant's request to testify from a separate room
puts the complainant at a disadvantage because, for example, the
respondent might be located in the same room as the decision-maker who
would thus have a greater opportunity to ``develop a personal
connection'' with the respondent than with the complainant, and
advantage the respondent by allowing the respondent to observe the
decision-maker's reactions to testimony while the complainant cannot
observe those reactions when located in a separate room. At least one
commenter argued that remote cross-examination puts survivors at a
distinct disadvantage because assessing non-verbal and behavioral
evidence of trauma is necessary in sexual violence incidents.
At least one commenter argued that witnesses must also be given the
right to request to testify in a separate room. One commenter recounted
a case in which a witness had also been raped by the respondent but the
recipient did not allow the witness to testify in a separate room and
the witness had to frequently leave the room during testimony due to
sobbing too hard to speak.
Commenters opposed requiring testimony in separate rooms on the
basis that internet functionality on campus is not always reliable, and
thus a rule that depends on technology is not realistic. Commenters
supported use of technology to facilitate parties being in separate
rooms as ``ideal'' but expressed concern that the cost of technology
that is both reliable and secure could be prohibitive for some
recipients because while software enabling simultaneous viewing of
parties in separate rooms may be relatively inexpensive, acquiring
additional hardware that may be necessary and expensive, such as audio-
visual equipment, monitors, and microphones. Commenters stated that
some recipients do not currently have technology set up in the spaces
used for Title IX proceedings and acquiring the requisite technology
would be costly.\1357\ Commenters asserted that complying with this
provision may also require acquisition of, or renovations to,
facilities that are not currently used for Title IX purposes by the
recipient, or specialized technology that meets the needs of
individuals with disabilities, resulting in expenditures that will only
be used for the limited purpose of Title IX hearings. Commenters
requested that the Department provide grant funding for acquiring
technology needed to meet this provision.
---------------------------------------------------------------------------
\1357\ At least one commenter cited: ezTalks.com, ``How Much
Does Video Conferencing Equipment Cost?,'' https://www.eztalks.com/video-conference/video-conference-equipment-cost.html, for the
proposition that room-based video conferencing could cost $10,000 to
$100,000 to set up.
---------------------------------------------------------------------------
Other commenters asserted that it is reasonable for separate rooms
to be used to ensure complete, comfortable honesty by each party and
that numerous low cost, secure presentation videoconferencing
technologies are available and already in use by many recipients to
ensure that participants can view and hear questions and responses in
real time.\1358\ Some commenters stated that while this provision would
require some monetary investment in technology the requirement was
reasonable and beneficial to allow the parties to participate in a
hearing from separate rooms.
---------------------------------------------------------------------------
\1358\ Commenters listed GoTo Meeting, Skype, Skype for
Business, Zoom, and Google Hangouts as examples of existing
technology platforms.
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' support for the
provision in Sec. 106.45(b)(6)(i) that requires recipients, upon any
party's request, to permit cross-examination to occur with the parties
in separate rooms using technology that enables participants to see and
hear the person answering questions. Commenters correctly asserted that
this provision is a direct acknowledgment of the potential for cross-
examination to feel intimidating and retraumatizing in sexual
harassment cases. Because the decision-maker cannot know until the
conclusion of a fair, reliable grievance process whether a complainant
is a victim of sexual harassment perpetrated by the respondent, cross-
examination is necessary to test party and witness statements for
veracity and accuracy, but the Department has determined that the full
value of cross-examination can be achieved while shielding the
complainant from being in the physical presence of the respondent. The
Department disagrees that only in-person, face-to-face confrontation
enables parties and decision-makers to adequately evaluate
credibility,\1359\ and declines to remove this shielding provision. As
discussed above, assessing demeanor is just one of the ways in which
cross-examination tests credibility, which includes assessing
plausibility, consistency, and reliability; judging truthfulness based
solely on demeanor has been shown to be less accurate than, for
instance, evaluating credibility based on consistency.\1360\ Thus, any
minimal reduction in the ability to gauge demeanor by use of technology
is outweighed by the
[[Page 30356]]
benefits of shielding victims from testifying in the presence of a
perpetrator. The Department disagrees that complainants should have to
make a threshold showing that trauma is likely because the Department
is persuaded by the many commenters who asserted that facing a
perpetrator is inherently traumatic for a victim. Further, the Sixth
Amendment's Confrontation Clause protects criminal defendants, and the
Department is not obligated to ensure that this provision would comply
with the Confrontation Clause, which does not apply to a respondent in
a noncriminal adjudication under Title IX.
---------------------------------------------------------------------------
\1359\ H. Hunter Bruton, Cross-Examination, College Sexual-
Assault Adjudications, and the Opportunity for Tuning up the
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub.
Pol'y, 145, 169 (2017) (``For example, studies comparing live-video
or videotaped testimony to traditional live-testimony formats show
no significant differences across mediums in observers' ability to
detect deception.'').
\1360\ E.g., Susan A. Bandes, Remorse, Demeanor, and the
Consequences of Misinterpretation: The Limits of Law as a Window
into the Soul, Journal of L., Religion & St. 3, 170, 179 (2014); cf.
H. Hunter Bruton, Cross-Examination, College Sexual-Assault
Adjudications, and the Opportunity for Tuning up the Greatest Legal
Engine Ever Invented, 27 Cornell J. L. & Pub. Pol'y, 145, 161
(2017).
---------------------------------------------------------------------------
The Department notes that recipients are obligated under Sec.
106.71 to ``keep confidential the identity of any individual who has
made a report or complaint of sex discrimination, including any
individual who has made a report or filed a formal complaint of sexual
harassment, any complainant, any individual who has been reported to be
the perpetrator of sex discrimination, any respondent, and any
witness'' in a Title IX grievance process except as permitted by FERPA,
required by law, or as necessary to conduct the hearing or proceeding;
this cautions recipients to ensure that technology used to comply with
this provision does not result in ``live streaming'' a party in a
manner that exposes the testimony to persons outside those
participating in the hearing.
The Department understands commenters' assertions that even with
shielding, cross-examination by a respondent's advisor may still be a
daunting prospect. The final regulations provide both parties with the
right to be supported and assisted by an advisor of choice, and protect
the parties' ability to discuss the allegations freely, including for
the purpose of seeking out emotional support or strategic advice.\1361\
The final regulations do not preclude a recipient from adopting rules
(applied equally to complainants and respondents) that govern the
taking of breaks and conferences with advisors during a hearing, to
further ameliorate the stress and emotional difficulty of answering
questions about sensitive, traumatic events. We have also revised Sec.
106.45(b)(6)(i) to provide that upon a party's request the entire live
hearing (and not only cross-examination) must occur with the parties
located in separate rooms. These measures are intended to balance the
need for statements to be tested for credibility so that accurate
outcomes are reached, with accommodations for the sensitive nature of
the underlying matters at issue.
---------------------------------------------------------------------------
\1361\ For further discussion see the ``Section
106.45(b)(5)(iii) Recipients Must Not Restrict Ability of Either
Party to Discuss Allegations or Gather and Present Relevant
Evidence'' subsection of the ``Investigation'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section
of this preamble.
---------------------------------------------------------------------------
The Department disagrees that shielding under Sec. 106.45(b)(6)(i)
disadvantages complainants (or respondents) and reiterates that both
parties' meaningful opportunity to advance their own interests in a
case may be achieved by party advisors conducting cross-examination
virtually. The Department notes that decision-makers are obligated to
serve impartially and thus should not endeavor to ``develop a personal
relationship'' with one party over another regardless of whether one
party is located in a separate room or not. For the same reasons that
judging credibility solely on demeanor presents risks of inaccuracy
generally, the Department cautions that judging credibility based on a
complainant's demeanor through the lens of whether observed demeanor is
``evidence of trauma'' presents similar risks of inaccuracy.\1362\ The
Department reiterates that while assessing demeanor is one part of
judging credibility, other factors are consistency, plausibility, and
reliability. Real-time cross-examination presents an opportunity for
parties and decision-makers to test and evaluate credibility based on
all these factors.
---------------------------------------------------------------------------
\1362\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed
Investigation Training 10 (Holland & Knight updated July 19, 2019)
(while counterintuitive behaviors may be driven by trauma-related
hormones or memory issues, counterintuitive behavior may also bear
on a witness's credibility, and thus training about whether or how
trauma or stress may influence a person's demeanor should be applied
equally to interviewing any party or witness); ``Recommendations of
the Post-SB 169 Working Group,'' 3 (Nov. 14, 2018) (report by a task
force convened by former Governor of California Jerry Brown to make
recommendations about how California institutions of higher
education should address allegations of sexual misconduct) (trauma-
informed ``approaches have different meanings in different contexts.
Trauma-informed training should be provided to investigators so they
can avoid re-traumatizing complainants during the investigation.
This is distinct from a trauma-informed approach to evaluating the
testimony of parties or witnesses. The use of trauma-informed
approaches to evaluating evidence can lead adjudicators to overlook
significant inconsistencies on the part of complainants in a manner
that is incompatible with due process protections for the
respondent. Investigators and adjudicators should consider and
balance noteworthy inconsistencies (rather than ignoring them
altogether) and must use approaches to trauma and memory that are
well grounded in current scientific findings.'').
---------------------------------------------------------------------------
The Department declines to grant witnesses the right to demand to
testify in a separate room, but revises Sec. 106.45(b)(6)(i) to allow
a recipient the discretion to permit any participant to appear
remotely. Unlike complainants, witnesses usually do not experience the
same risk of trauma through cross-examination. Witnesses also are not
required to testify and may simply choose not to testify because the
determination of responsibility usually does not directly impact,
implicate, or affect them. With respect to a witness who claims to also
have been sexually assaulted by the respondent, the recipient has
discretion to permit the witness to testify remotely, or to hold the
entire live hearing virtually.
The Department appreciates commenters' assertions that some
recipients already effectively use technology to enable virtual
hearings, and other commenters' concerns that acquiring technology may
cause a recipient to incur costs. The Department agrees with some
commenters who asserted that even where this provision requires a
monetary investment in technology, low-cost technology is available and
the importance of this shielding provision outweighs the burden of
setting up the requisite technology. Although this shielding provision
requires that a Title IX live hearing would be held in two ``separate
rooms'' the Department is not persuaded that such a requirement
necessitates any recipient's capital investment in renovations or
acquiring new real property, because the Department is unaware of a
recipient whose existing facilities consist of a single room. These
final regulations do not address the eligibility or purpose of grant
funding for recipients, and the Department thus declines to provide
technology grants via these regulations.
Changes: We have revised Sec. 106.45(b)(6)(i) to allow recipients,
in their discretion, to hold live hearings virtually or for any
participant to appear remotely, using technology to enable participants
to see and hear each other, and to require a recipient to grant any
party's request for the entire live hearing to be held with the parties
located in separate rooms.
Discretion To Hold Live Hearings and Control Conduct of Hearings
Comments: Many commenters supported the requirement in Sec.
106.45(b)(6)(i) that postsecondary institutions hold live hearings at
the conclusion of an investigation of a formal complaint, because a
live hearing ensures that the decision-maker hears from the parties and
witnesses, which gives both parties an opportunity to present their
side of the story to the decision-maker and reduces opportunity for
biased decision making. Commenters argued that in the college or
university
[[Page 30357]]
setting, where the participants are usually adults, live hearings
provide the most transparent mechanism for ensuring all parties have
the opportunity to submit, review, contest, and rebut evidence to be
considered by the fact-finder in reaching a determination, and this is
critical where both parties' interests are at stake and potential
sanctions are serious.\1363\ Commenters stated that live hearings are
the only method by which deciding parties can accurately assess the
veracity of both the complainant's and respondent's statements, and
where allegations have been tested in a live hearing and the
determination finds the respondent to be responsible that outcome is
more likely to be reliable and less likely to be overturned on appeal
or in litigation. Commenters argued that requiring a live hearing
ensures that all parties see the same evidence and testimony as the
fact-finder, so that each party can fully rebut or buttress that
evidence and testimony to serve the party's own interest. Commenters
argued that live hearings also decrease the chance that the bias of a
single investigator or fact-finder may warp the process by reaching
determinations not by the facts and a desire for a just outcome, but by
prejudice, well-intentioned or otherwise.
---------------------------------------------------------------------------
\1363\ Commenters cited: American Bar Association, ABA Criminal
Justice Section Task Force on College Due Process Rights and Victim
Protections, Recommendations for Colleges and Universities in
Resolving Allegations of Campus Sexual Misconduct 3 (2017)
(expressing a preference for the ``adjudicatory model,'' defined as
``a hearing in which both parties are entitled to be present,
evidence is presented, and the decision-maker(s) determine(s)
whether a violation of school policy has occurred'').
---------------------------------------------------------------------------
Many commenters opposed the live hearing requirement. Commenters
argued that even though the withdrawn 2011 Dear Colleague Letter caused
many recipients to overcorrect their sexual misconduct policies by
shirking due process responsibilities,\1364\ commenters asserted that
recipients should have the option but not the mandate to provide live
hearings to preserve recipients' flexibility to design a fair process.
Commenters argued that live hearings make campus proceedings so much
like court proceedings that the benefit of going through an equitable
Title IX process instead of formal court trials will be lost.\1365\
Commenters argued that while hearings and cross-examination may be
deeply rooted in the legal system, such procedures are not deeply
rooted in school disciplinary processes. Commenters also argued that
requiring live hearings is going ``a bridge too far'' because
recipients are not equipped to conduct court-like hearings.
---------------------------------------------------------------------------
\1364\ Commenters cited: Blair Baker, When Campus Sexual
Misconduct Policies Violate Due Process Rights, 26 Cornell J. of L.
& Pub. Pol'y 533, 535 (2017) (in response to the 2011 Dear Colleague
Letter ``colleges overcorrected their sexual assault policies by
adopting policies that shirk the legally mandated due process rights
of students accused of misconduct and effectively presume their
guilt'').
\1365\ Commenters cited: Alexandra Brodsky, A Rising Tide:
Learning About Fair Disciplinary Process from Title IX, 77 Journal
of Legal Educ. 4 (2017).
---------------------------------------------------------------------------
Commenters argued that requiring an adversarial, high-stakes live
hearing ignores many cultures that rely on the inquisitorial system to
achieve justice, under which decision makers are vested with the duty
of fact finding instead of pitting the parties against each other to
offer competing versions of the truth.
Commenters asserted that live hearings add no value to the fact-
finding process so long as a full, fair investigation was conducted.
Commenters described experiences with particular recipients where the
recipient used a live hearing model for a significant period of time
but stopped using a live hearing model after experiencing pitfalls that
outweighed its usefulness, stating that hearings became a springboard
to introduce new evidence and witnesses, embarrassed parties in ways
that derailed the hearing, and hearing panels were left needing legal
advice on a myriad of issues like evidentiary determinations.
Commenters argued that while school employees who are asked to
adjudicate are well-intentioned, they lack the legal expertise and
immunity available in court proceedings, and an investigative model has
been more efficient than a live hearing model, has resulted in fewer
contested outcomes, and has led to increased reporting of sexual
harassment.
Commenters asserted that a live hearing contains no mechanism to
act as a check against bias \1366\ and that decision-makers are capable
of being impartial and reaching unbiased decisions without the parties
and witnesses appearing at a live hearing.
---------------------------------------------------------------------------
\1366\ Commenters cited: Jessica A. Clarke, Explicit Bias, 113
Northwestern Univ. L. Rev. 505 (2018); Cara A. Person et al., ``I
Don't Know That I've Ever Felt Like I Got the Full Story'': A
Qualitative Study of Courtroom Interactions Between Judges and
Litigants in Domestic Violence Protective Order Cases, 24 Violence
Against Women 12 (2018); Lee Ross, From the Fundamental Attribution
Error to the Truly Fundamental Attribution Error and Beyond, 13
Perspectives on Psychol. Science 6 (2018); Margit E. Oswald & Ingrid
Stucki, Automatic Judgment and Reasoning About Punishment, 23 Social
Science Research 4 (2018); Eve Hannan, Remorse Bias, 83 Missouri L.
Rev. 301 (2018).
---------------------------------------------------------------------------
Likening campus disciplinary proceedings to administrative
proceedings, commenters argued that courts permit a wide variety of
administrative proceedings to utilize less formal procedures and still
comport with constitutional due process, for example allowing
consideration of hearsay evidence, not requiring a live hearing, and
not requiring cross-examination, even when such proceedings implicate
liberty and property interests.\1367\
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\1367\ Commenters cited, e.g., Richardson v. Perales, 402 U.S.
389, 402 (1971) (cross-examination is not an absolute requirement in
a Social Security Disability benefits case); Wolff v. McDonnell, 418
U.S. 539, 567-68 (1974) (prison officials may rely on hearsay
evidence to add to a prisoner's sentence); Johnson v. United States,
628 F.2d 187 (D.C. Cir. 1980) (cross-examination not required where
professional licensing was at stake); Williams v. U.S. Dep't. of
Transp., 781 F.2d 1573 (11th Cir. 1986) (cross-examination not
required for a Coast Guard finding that a pilot negligently operated
a boat); Matter of Friedel v. Bd. of Regents, 296 N.Y. 347, 352-353
(N.Y. Ct. App. 1947) (limitation on right to confront investigators
in suspension hearing for performing illegal procedures); Delgado v.
City of Milwaukee Employees' Ret. Sys./Annuity and Pension Bd., 268
Wis.2d 845 (Wisc. Ct. App. 2003) (cross-examination is not required
at a hearing to revoke a police officer's duty disability payments);
In re J.D.C., 284 Kan. 155, 170 (Kan. 2007) (child welfare officials
may depend on hearsay to determine child custody if it is relevant
and probative, particularly where the parent waives the right to
cross-examine the child).
---------------------------------------------------------------------------
Commenters asserted that sometimes a witness is a friend of a party
and must truthfully share information that damages the witness's
friendship with the party, and that while a witness might be willing to
put truth above friendship by privately talking to an investigator, a
witness is less likely to do this when it requires testimony at a live
hearing in front of the witness's friend. Commenters argued that the
live hearing requirement puts a burden on the parties to pressure or
cajole their friends into appearing as witnesses because the recipient
has no subpoena power to compel witness participation.
Commenters argued that requiring the formal process of a live
hearing demonstrates that the proposed regulations value the potential
future of respondents more than the safety and well-being of
complainants. Commenters asserted that the formalities of a live
hearing with cross-examination ``swing the pendulum'' too far when
schools need a refined approach to reach balanced fairness.
Commenters asserted that recipients have spent time and resources
developing non-hearing adjudication models and should have the
flexibility to continue using such models so long as the procedures are
fair and equitable. Commenters asserted that requiring live hearings
will force recipients to abandon hybrid investigatory models
[[Page 30358]]
that recipients have carefully developed over the last several years.
Commenters argued that where the facts are not contested, or where
the respondent has admitted responsibility, or video evidence of the
incident in question exists, there is no need to put parties through
the ordeal of a live hearing yet the proposed rules would force an
institution to hold a live hearing anyway, straining the limited
resources of all schools but especially smaller institutions. One
commenter argued that if, for example, a respondent video-taped the
respondent raping a student and the hearing officer watches the video
and hears from the complainant who confirms the incident did happen,
and the respondent denies doing it, a live hearing with cross-
examination would not be useful in such a scenario.
Commenters suggested that this provision be modified to require the
parties to attempt mediation, so that a live hearing is required only
if mediation fails. Commenters stated that some recipients use an
administrative disposition model where a respondent may accept
responsibility based on an investigator's findings and the final
regulations should permit the recipient, or the respondent, in that
situation to waive the right to a live hearing. Commenters asserted
that the final regulations should include a provision allowing the
parties to enter into a voluntary resolution agreement (VRA) that
includes disciplinary action against the respondent, where the
recipient could offer the VRA to both parties in advance of a live
hearing, and if the parties accepted the VRA it would become the final
outcome, or the parties could reject the VRA and demand a live hearing.
Other commenters argued that either party should have the right to
waive a live hearing so that a live hearing should only occur if both
parties and the recipient agree it is the appropriate method of
resolution for a particular case.
Commenters argued that the proposed regulations do not allow
universities to follow State APAs (Administrative Procedure Acts), for
example in Washington State where a student may appeal a responsibility
finding made in an investigation to a live hearing, or in New York
where New York Education Law Article 129-B (known as ``Enough is
Enough'') allows written submission of questions instead of live cross-
examination. Commenters argued that some public universities are
already subject to State APAs that impose the kind of live hearings and
cross-examination procedures required by these final regulations, and
recipients find these procedures to be burdensome, costly, and lengthy.
Commenters quoted a Federal district court memorandum from 1968
setting forth guidelines on how that district court should evaluate
claims against tax-funded colleges and universities, where the court
memorandum stated the nature and procedures of college discipline
should not be required to conform to Federal criminal law processes
which are ``far from perfect'' and designed for circumstances unrelated
to the academic community.\1368\ Commenters argued that most Federal
courts adopt that approach, acknowledging that student discipline is
part of the education process and is not punitive in the criminal
sense; rather, expelled students may suffer damaging effects but do not
face imprisonment, fines, disenfranchisement, or probation. Commenters
asserted that deference to a college or university's chosen
disciplinary system is even more warranted for private institutions
that do not owe constitutional due process to students or
employees.\1369\
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\1368\ Commenters cited: General Order on Judicial Standards of
Procedure and Substance in Review of Student Discipline in Tax
Supported Institutions of Higher Education, ED025805 (1968); Esteban
v. Cent. Mo. State Coll., 415 F.2d 1077, 1090 (8th Cir. 1969)
(``school regulations are not to be measured by the standards which
prevail for the criminal law and for criminal procedure.'').
\1369\ Commenters cited: William A. Kaplin & Barbara A. Lee, The
Law of Higher Education Sec. 10.2.3 (5th ed. 2013) (``Private
institutions, not being subject to federal constitutional
constraints, have even more latitude than public institutions do in
promulgating disciplinary rules.'').
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Many commenters argued that the NPRM gave recipients too little
flexibility to determine how hearings should be conducted, and that the
final regulations should grant recipients discretion to adopt rules to
control the conduct and environment of hearings in a manner that is
effective and fair to all parties and witnesses. Some commenters
suggested that the final regulations should state more broadly that
recipients must offer parties reasonable mitigating measures during a
live hearing, of which locating the parties in separate rooms is but
one example.
Commenters asked for clarification such as: Can recipients limit
the hearing to consideration only of evidence previously included in
the investigative report? Can recipients impose rules of evidence left
unaddressed by the proposed regulations, such as excluding questions
that are misleading, assume facts not in evidence, or call for
disclosure of attorney-client privileged information, or questions that
are cumulative, repetitive, or abusive? Can recipients impose time
limits on hearings so that parties and witnesses do not spend multiple
days in a hearing rather than fulfilling their academic or work
responsibilities? Can a recipient specify who may raise objections to
evidence during the hearing?
Commenters asserted that live hearings are administratively time-
consuming and will lengthen the grievance process by requiring both
parties and their advisors to be on campus simultaneously, which is
impractical and often undesirable. Commenters urged the Department to
authorize recipients to hold the entire live hearing virtually, with
parties in separate locations, using technology so that each party can
see and hear all other parties, because some recipients offer mostly
online courses such that parties might reside significant distances
from any physical campus, or parties may move or be called to military
service after a formal complaint has been filed, or the alleged
harassment itself may have occurred entirely online and the parties may
not reside close to campus. Commenters asserted that since the proposed
rules already allow the parties to be located in separate rooms, there
is no reason not to also allow a recipient to hold the entire hearing
virtually using technology. At least one commenter asserted that even
allowing participation virtually would not make this provision fair
because the commenter had a case in which a key witness was studying
abroad in a country with a large time zone difference making it
impossible for the witness to testify even remotely using technology.
Commenters argued that coordinating the schedules of parties, advisors,
hearing panels, and witnesses to appear for a live hearing will delay
proceedings. Other commenters stated that some rural university systems
have satellite campuses in remote locations off the road system, with
insufficient internet access even to allow videoconferencing, posing
significant barriers to complying with a live hearing requirement.
Commenters asserted that all hearings should be recorded and either
a transcript or video or audio recording should be provided to each
party following the hearing, so the parties have access to it when
appealing decisions or possibly for later use in litigation, because
too many Title IX proceedings have occurred in secret, behind closed
doors, with no record of the proceedings. According to this commenter,
universities typically forbid parties from recording hearings and not
having such a record can allow a
[[Page 30359]]
grievance board's illegal bias against a party to fester and remain
unchecked by the university, regulatory agencies, or the courts.
One commenter asserted that hearings should be closed and attended
only by the parties, their advisors, witnesses, and school officials
relevant to the hearing, and requested that confidentiality of the
hearing be written into the final regulations.
Discussion: The Department appreciates commenters' support for this
provision, requiring postsecondary institutions to hold live hearings.
The Department agrees that a live hearing gives both parties the most
meaningful, transparent opportunity to present their views of the case
to the decision-maker, reducing the likelihood of biased decisions,
improving the accuracy of outcomes, and increasing party and public
confidence in the fairness and reliability of outcomes of Title IX
adjudications.
The Department agrees with commenters that hearings and cross-
examination of witnesses are deeply rooted concepts in American legal
systems, but disagrees that the principles underlying those procedures
should be absent from postsecondary institutions' adjudications under
Title IX. Administrative law ``seeks to ensure that those whose rights
are affected by the decisions of administrative tribunals are given
notice of hearings, guaranteed an oral, often public hearing, have a
right to be represented, are granted disclosure of the case against
them, are able to introduce evidence, call witnesses and cross-examine
those testifying against them, have access to reason for decision, and
an opportunity to appeal an adverse outcome. . . . The process assumes
the value of an adversarial hearing in which impartial adjudicators are
exposed to representations from those asserting a claim and those
seeking a contrary finding.'' \1370\ Furthermore, while not all
recipients use a hearing model in student misconduct matters, many do
or have in the recent past.\1371\
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\1370\ Farzana Kara & David MacAlister, Responding to academic
dishonesty in universities: a restorative justice approach, 13
Contemporary Justice Rev. 4, 443-44 (2010) (internal citations
omitted).
\1371\ See Tamara Rice Lave, Ready, Fire, Aim: How Universities
Are Failing The Constitution In Sexual Assault Cases, 48 Ariz. State
L. J. 637, 656 (2016) (in a survey of 50 American universities, 84
percent reported that they use an adjudicatory model with a hearing
at which witnesses testify in front of a fact-finder); Vivian
Berger, Academic Discipline: A Guide to Fair Process for the
University Student, 99 Columbia L. Rev. 289 (1999) (authors surveyed
200 public and private colleges and universities, and 90 percent of
public institutions and 80 percent of private institutions reported
using adjudicatory hearings with cross-examination rights).
---------------------------------------------------------------------------
The Department agrees that postsecondary institutions are not
equipped to act as courts of law. The final regulations acknowledge
this reality by prescribing a grievance process that intentionally
avoids importation of comprehensive rules of procedure (including
discovery procedures) and rules of evidence that govern civil or
criminal court trials. Instead, the Sec. 106.45 grievance process
requires procedures rooted in fundamental concepts of due process and
fairness that layperson recipient officials are capable of applying
without professional legal training. The Department disagrees that live
hearings transform Title IX adjudications into court proceedings; the
advantages to reaching determinations about sex discrimination in the
form of sexual harassment without going through a civil or criminal
trial remain distinct under the final regulations.
The Department disagrees that live hearings add no value to the
fairness or accuracy of outcomes even where an investigation was full
and fair. Despite some commenters' contention that recipients prefer
moving to an investigative model rather than a hearing model, the
Department believes that an adversarial adjudication model better
serves the interests of fairness, accuracy, and legitimacy that
underlie the Sec. 106.45 grievance process.
The adversarial system ``stands with freedom of speech and the
right of assembly as a pillar of our constitutional system.'' \1372\
Just as the final regulations reflect acute awareness of the importance
of freedom of speech and academic freedom, these regulations are
equally concerned with reflecting the importance of the adversarial
model with respect to adjudications of contested facts. ``Rights like
trial by jury and the assistance of counsel--the cluster of rights that
comprise constitutional due process of law--are most important when the
individual stands alone against the state as an accused criminal. The
fundamental characteristics of the adversary system also have a
constitutional source, however, in our administration of civil
justice'' to redress grievances, resolve conflicts, and vindicate
rights.\1373\ ``The Supreme Court has held that the Due Process Clauses
protect civil litigants who seek recourse in the courts, either as
plaintiffs attempting to redress grievances or as defendants trying to
maintain their rights.'' \1374\ The final regulations recognize the
importance of due process principles in a noncriminal context by
focusing on procedures that apply equally to complainants and
respondents and give both parties equal opportunity to actively pursue
the case outcome they desire.
---------------------------------------------------------------------------
\1372\ Geoffrey C. Hazard, Jr., Ethics in the Practice of Law
122-23 (Yale Univ. Press 1978).
\1373\ Monroe H. Freedman, Our Constitutionalized Adversary
System, 1 Chapman L. Rev. 57, 66-67 (1998) (``In fact, the adversary
system in civil litigation has played a central role in fulfilling
the constitutional goals `to . . . establish Justice, insure
domestic Tranquility, . . . promote the general Welfare, and secure
the Blessings of Liberty. . . .' '') (quoting U.S. Const. Preamble).
\1374\ Id. at 67.
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In addition to representing core constitutional values, an
adversarial system yields practical benefits. ``[T]he available
evidence suggests that the adversary system is the method of dispute
resolution that is most effective in determining truth'' and that
``gives the parties the greatest sense of having received justice.''
\1375\ ``An adversary presentation seems the only effective means for
combating this natural human tendency to judge too swiftly in terms of
the familiar that which is not yet fully known.'' \1376\ With respect
to ``the idea of individual autonomy--that each of us should have the
greatest possible involvement in, if not control over, those decisions
that affect our lives in significant ways [--] . . . empirical studies
that have been done suggest, again, a preference for the adversary
system over the inquisitorial.'' \1377\
[[Page 30360]]
Studies conducted to determine ``whether a litigant's acceptance of the
fairness of the actual decision is affected by the litigation system
used'' have concluded that ``the perception of the fairness of an
adversary procedure carries over to create a more favorable reaction to
the verdict . . . regardless of the outcome.'' \1378\ As to commenters'
contention that moving to an investigatory rather than hearing model
resulted in increased reporting of sexual harassment, the Department
emphasizes that the final regulations ensure that every complainant may
report and receive supportive measures without undergoing an
investigation or adjudication.\1379\
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\1375\ Id. at 73-74; David L. Kirn, Proceduralism and
Bureaucracy: Due Process in the School Setting, 28 Stanford L. Rev.
841, 847-49 (1976) (``In the classic due process hearing, the
disputants themselves, not the decisionmaker, largely determine what
evidence bearing on the issue is to be introduced. The veracity of
that evidence is tested through questioning of witnesses, a
procedure structured to uncover both lapses of memory and
falsehoods, conducted by an advocate skilled in this enterprise.
During the course of the hearing, the decisionmaker acts only to
contain the colloquy within the bounds of the actual dispute. He is
a disinterested and impartial arbiter, constrained to reach a
judgment based exclusively on facts presented at the hearing, with
respect to which there has been opportunity for rebuttal. His
decision is a reasoned one that explicitly resolves disagreements
concerning facts and relates a determination in the case before him
to the governing rule. Subject to the availability of appeal, that
decision is dispositive of the matter. These several elements of the
ideal due process hearing are intended primarily to assure that
factual determinations have been reliably made, and hence to promote
the societal interest in just outcomes.''); id. (``Reliability,
valued by society, is not the only end held to be promoted by due
process. The participants to the dispute are themselves seen as
better off. . . . Participation also assures that the individual is
not being treated as a passive creature, but rather as a person
whose dignitary rights include an interest in influencing what
happens to his life. Personal involvement, it is argued, promotes
fairness in individual perception as well as fairness in fact.'').
\1376\ Monroe H. Freedman, Our Constitutionalized Adversary
System, 1 Chapman L. Rev. 57, 76 (1998).
\1377\ Id. at 87.
\1378\ Id. at 89 (internal quotation marks and citations
omitted).
\1379\ Section 106.44(a).
---------------------------------------------------------------------------
The Department does not dispute that other countries rely on an
inquisitorial rather than adversarial model of adjudication, but Title
IX is a Federal civil rights statute representing the American value
placed on education programs and activities free from sex
discrimination, and Title IX must be applied and interpreted in
accordance with American law rather than laws and systems that prevail
elsewhere.\1380\ While commenters cited research studies calling into
doubt the truth-seeking effectiveness of the adversarial process and
calling for reforms including moving toward inquisitorial models, the
adversarial system remains deeply embedded in the U.S. Constitution and
in American legal systems and civic values, and ``the research that has
been done provides no justification for preferring the inquisitorial
search for truth or for undertaking radical changes in our adversary
system.'' \1381\
---------------------------------------------------------------------------
\1380\ Monroe H. Freedman, Our Constitutionalized Adversary
System, 1 Chapman L. Rev. 57, 74 (1998) (observing that
sophisticated critics of the adversarial system of criminal and
civil litigation ``have turned to the inquisitorial systems of
continental European democracies for an alternative to the adversary
system. The central characteristic of the inquisitorial model is the
active role of the judge, who is given the principal responsibility
for searching out the relevant facts. In an adversary system the
evidence is presented in dialectical form by opposing lawyers; in an
inquisitorial system the evidence is developed in a predominantly
unilateral fashion by the judge, and the lawyers' role is
minimal.'') (internal citation omitted).
\1381\ Id. at 80; Crawford v. Washington, 541 U.S. 36, 43-44
(2004). Although decided under the Sixth Amendment's Confrontation
Clause which only applies to criminal trials, the Supreme Court
analyzed the history of American legal systems' insistence that
adversarial procedures rooted in English common law (as opposed to
inquisitorial procedures utilized by civil law countries in Europe)
represented fundamental notions of due process of law, and American
founders deliberately rejected devices that English common law
borrowed from civil law.
---------------------------------------------------------------------------
The Department appreciates commenters' concerns that based on
experience holding hearings, a hearing model was abandoned by
particular recipients in favor of an investigatory model, but the
Department disagrees that properly conducted hearings will become a
springboard to introduce new evidence, derail hearings by embarrassing
the parties, or require hearing panels to seek out extensive legal
advice. The Department reiterates that recipients may adopt rules to
govern a Title IX grievance process in addition to those required under
Sec. 106.45, so long as such rules apply equally to both
parties.\1382\ Thus, recipients may decide whether or how to place
limits on evidence introduced at a hearing that was not gathered and
presented prior to the hearing, and rules controlling the conduct of
participants to ensure that questioning is done in a respectful manner.
The Department reiterates that the procedures in Sec. 106.45 have been
selected with awareness that decision-makers in Title IX grievance
processes need not be judges or lawyers, and the Department believes
that each provision of these final regulations may be complied with and
applied by layperson recipient officials.
---------------------------------------------------------------------------
\1382\ The introductory sentence of revised Sec. 106.45(b)
provides: ``For the purpose of addressing formal complaints of
sexual harassment, a recipient's grievance process must comply with
the requirements of this section. Any provisions, rules, or
practices other than those required by this section that a recipient
adopts as part of its grievance process for handling formal
complaints of sexual harassment as defined in Sec. 106.30, must
apply equally to both parties.''
---------------------------------------------------------------------------
The Department does not dispute that decision-makers are capable of
being impartial and unbiased without the parties appearing at a live
hearing, and the final regulations expect that decision-makers will
serve impartially without bias. However, adversarial procedures make it
even less likely that any bias held by a decision-maker will prevail
because the parties' own views about the evidence are presented to the
decision-maker, and the decision-maker observes the parties as
individuals which makes it more difficult to apply even unconsciously-
held stereotypes or generalizations about groups of people.
The Department agrees that a variety of administrative agency
proceedings have been declared by courts to comport with constitutional
due process utilizing procedures less formal than those that apply in
criminal or even civil courts. The Department believes that the
procedures embodied in the Sec. 106.45 grievance process meet or
exceed constitutional due process of law, while being adapted for
application with respect to an education program or activity, and do
not mirror civil or criminal trials.
The Department realizes that witnesses with information relevant to
sexual harassment allegations that involve the witness's friends or co-
students may feel disinclined to provide information during an
investigation, and perhaps more so at a live hearing. However, the
importance of both parties' opportunity to present and challenge
evidence--particularly witness statements--requires that a witness make
statements in front of the decision-maker, with both parties' advisors
able to cross-examine. This does not permit parties to coerce witnesses
into appearing at a hearing. No person should coerce or intimidate any
witness into participating in a Title IX proceeding, and Sec.
106.71(a) protects every individual's right not to participate free
from retaliation.
The final regulations, and the live hearing requirement in
particular, benefit complainants and respondents equally by granting
both parties the same rights and specifying the same consequences for
lack of participation. The safety of complainants can be addressed in
numerous ways consistent with these final regulations, including
holding the hearing virtually, having the parties in separate rooms,
imposing no-contact orders on the parties, and allowing advisors of
choice to accompany parties to the hearing. For the reasons described
above, the Department believes that the final regulations balance the
pendulum rather than swing the pendulum too far, in terms of balancing
the rights of both parties in a contested sexual harassment situation
to pursue their respective desires regarding the case outcome.
The Department believes that the time and resources recipients have
spent over the past several years developing non-hearing adjudication
models can largely be applied to a recipient's obligations under these
final regulations. For example, recipients who have developed thorough
and fair investigative processes may continue to conduct such
investigations. The benefits of a full, fair investigation will
continue to be an important part of the Sec. 106.45 grievance process.
Even though postsecondary institutions will reach actual determinations
regarding responsibility after holding a live hearing, the time and
resources dedicated to developing recipients' current systems will
largely carry over into compliance with the final regulations.
Where the facts alleged in a formal complaint are not contested, or
where the respondent has admitted, or wishes
[[Page 30361]]
to admit responsibility, or where both parties want to resolve the case
without a completed investigation or adjudication, Sec. 106.45(b)(9)
allows a recipient to facilitate an informal resolution of the formal
complaint that does not necessitate a full investigation or
adjudication.\1383\ As noted above, even if no party appears for the
live hearing such that no party's statements can be relied on by the
decision-maker, it is still possible to reach a determination regarding
responsibility where non-statement evidence has been gathered and
presented to the decision-maker. Commenters' descriptions of an
administrative disposition model, or a proposed voluntary resolution
agreement, are permissible under the final regulations if applied as
part of an informal resolution process in conformity with Sec.
106.45(b)(9), which requires both parties' written, voluntary consent
to the informal process. The Department declines to authorize one or
both parties, or the recipient, simply to ``waive'' a live hearing, and
Sec. 106.45(b)(9) in the final regulations impresses upon recipients
that a recipient cannot condition enrollment, employment, or any other
right on the waiver of rights under Sec. 106.45, nor may a recipient
ever require parties to participate in an informal resolution process.
Participating in mediation, which is a form of informal resolution,
should remain a decision for each party, individually, to make in a
particular case, and the Department will not require the parties to
attempt mediation.
---------------------------------------------------------------------------
\1383\ Section 106.45(b)(9) does not permit recipients to offer
or facilitate informal resolution of allegations that an employee
sexually harassed a student.
---------------------------------------------------------------------------
The Department appreciates commenters' concerns that State APAs may
prescribe grievance procedures that differ from those in a Sec. 106.45
grievance process. To the extent that a recipient is able to comply
with both, it must do so, and if compliance with both is not possible
these final regulations, which constitute Federal law, preempt
conflicting State law.\1384\ The Department cautions, however, that
preemption may not be necessary where, for example, a State law
requires fewer procedures than do these final regulations, such that a
recipient complying with Sec. 106.45 is not violating State law but
rather providing more or greater procedures than State law requires. To
the extent that recipients find hearings under State APAs to be
burdensome, the Department contends that the value of hearings
outweighs such burdens, a policy judgment ostensibly shared by State
legislatures that already require recipients to hold hearings.
---------------------------------------------------------------------------
\1384\ For further discussion see the ``Section 106.6(h)
Preemptive Effect'' subsection of the ``Clarifying Amendments to
Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------
The Department generally does not disagree with the general
propositions set forth in the Federal district court memorandum cited
by commenters to explain that college discipline differs from Federal
criminal processes.\1385\ The Department observes that the memorandum
notes that ``Only where erroneous and unwise actions in the field of
education deprive students of federally protected rights or privileges
does a federal court have power to intervene in the educational
process.'' \1386\ These final regulations precisely protect the rights
and privileges owed to every person participating in an education
program or activity under Title IX, a Federal civil rights law. In so
doing, these final regulations reflect that a Title IX grievance
process is not a criminal proceeding and defer to all recipients
(public and private institutions) to make their own decisions within a
consistent, predictable framework.
---------------------------------------------------------------------------
\1385\ General Order on Judicial Standards of Procedure and
Substance in Review of Student Discipline in Tax Supported
Institutions of Higher Education, ED025805 (1968).
\1386\ Id.
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In response to commenters' concerns that the NPRM was unclear about
the extent of recipients' discretion to adopt rules and practices to
govern the conduct of hearings (and other aspects of a grievance
process) the Department has added to the introductory sentence of Sec.
106.45(b): ``Any provisions, rules, or practices other than those
required by Sec. 106.45 that a recipient adopts as part of its
grievance process for handling formal complaints of sexual harassment
as defined in Sec. 106.30, must apply equally to both parties.'' Under
this provision a recipient may, for instance, adopt rules that instruct
party advisors to conduct questioning in a respectful, non-abusive
manner, decide whether the parties may offer opening or closing
statements, specify a process for making objections to the relevance of
questions and evidence, place reasonable time limitations on a hearing,
and so forth. The Department declines to require recipients to offer
``mitigating measures'' during hearings in addition to the shielding
provision in Sec. 106.45(b)(6)(i) that requires a recipient to allow
parties to participate in the live hearing in separate rooms upon any
party's request. Similarly, recipients may adopt evidentiary rules
(that also must apply equally to both parties), but any such rules must
comport with all provisions in Sec. 106.45, such as the obligation to
summarize all relevant evidence in an investigative report, the
obligation to evaluate all relevant evidence both inculpatory and
exculpatory, the right of parties to gather and present evidence
including fact and expert witnesses, the right to pose relevant cross-
examination questions, and the rape shield provisions that deem sexual
behavior evidence irrelevant subject to two exceptions. Thus, a
recipient's additional evidentiary rules may not, for example, exclude
relevant cross-examination questions even if the recipient believes the
questions assume facts not in evidence or are misleading. In response
to commenters' concerns that relevant questions might implicate
information protected by attorney-client privilege, the final
regulations add Sec. 106.45(b)(1)(x) to bar the grievance process from
requiring, allowing, relying on, or otherwise using questions or
evidence that constitute, or seek disclosure of, information protected
under a legally recognized privilege. This bar on information protected
under a legally recognized privilege applies at all stages of the Sec.
106.45 grievance process, including but not limited to the
investigator's gathering of evidence, inspection and review of
evidence, investigative report, and the hearing. This protection of
privileged information also applies to a privilege held by a recipient.
Additionally, questions that are duplicative or repetitive may fairly
be deemed not relevant and thus excluded.
In response to commenters' concerns that holding live hearings is
administratively time-consuming and presents challenges coordinating
the schedules of all participants, the Department has revised this
provision to allow a recipient discretion to conduct hearings
virtually, facilitated by technology so participants simultaneously see
and hear each other. The Department appreciates the concerns of
commenters that some recipients operate programs or activities that are
difficult to access via road systems and are in remote locations where
technology is not accessible or reliable. The final regulations permit
a recipient to apply temporary delays or limited extensions of time
frames to all phases of a grievance process where good cause exists.
For example, the need for parties, witnesses, and other hearing
participants to secure transportation, or for the recipient to
troubleshoot technology to facilitate a
[[Page 30362]]
virtual hearing, may constitute good cause to postpone a hearing.
The Department is persuaded by commenters' suggestions that all
hearings should be recorded or transcribed, and has revised Sec.
106.45(b)(6)(i) to require recipients to create an audio or audiovisual
recording, or transcript, of any live hearing and make that recording
or transcript available to the parties for inspection and review. As
the commenters asserted, such a recording or transcript will help any
party who wishes to file an appeal pursuant to Sec. 106.45(b)(8) and
also will reinforce the requirement that a decision-maker not have a
bias for or against complainants or respondents generally or an
individual complainant or respondent as set forth in Sec.
106.45(b)(1)(iii).
The Department appreciates the opportunity to clarify here that
hearings under Sec. 106.45(b)(6) are not ``public'' hearings, and
Sec. 106.71(a) states that recipients must keep confidential the
identity of any individual who has made a report or complaint of sex
discrimination, including any individual who has made a report or filed
a formal complaint of sexual harassment, any complainant, any
individual who has been reported to be the perpetrator of sex
discrimination, any respondent, and any witness, except as permitted by
the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99,
or as required by law, or as necessary to conduct the hearing.
Changes: The Department has revised Sec. 106.45(b)(6)(i) to add
language authorizing recipients to conduct live hearings virtually,
specifically providing that live hearings pursuant to this subsection
may be conducted with all parties physically present in the same
geographic location, or at the recipient's discretion, any or all
parties, witnesses, and other participants may appear at the live
hearing virtually, with technology enabling participants simultaneously
to see and hear each other. We have also revised this provision so that
upon a party's request the parties must be in separate rooms for the
live hearing, and not only for cross-examination. We have also revised
Sec. 106.45(b)(6)(i) to add a requirement that recipients create an
audio or audiovisual recording, or transcript, of any live hearing held
and make the recording or transcript available to the parties for
inspection and review.
Additionally, we have revised the introductory sentence of Sec.
106.45(b) to provide that any provisions, rules, or practices other
than those required by Sec. 106.45 that a recipient adopts as part of
its grievance process for handling formal complaints of sexual
harassment as defined in Sec. 106.30, must apply equally to both
parties.
We have revised Sec. 106.45(b)(9) to provide that a recipient may
not require as a condition of enrollment or continuing enrollment, or
employment or continuing employment, or enjoyment of any other right,
waiver of the right to an investigation and adjudication of formal
complaints of sexual harassment consistent with Sec. 106.45. We have
also added Sec. 106.71 prohibiting retaliation and stating that
recipients must keep confidential the identity of any individual who
has made a report or complaint of sex discrimination, including any
individual who has made a report or filed a formal complaint of sexual
harassment, any complainant, any individual who has been reported to be
the perpetrator of sex discrimination, any respondent, and any witness,
except as may be permitted by the FERPA statute or regulations, 20
U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out
the purposes of 34 CFR part 106, including these final regulations.
Finally, we have added Sec. 106.45(b)(1)(x) to bar the grievance
process from requiring, allowing, relying on, or otherwise using
questions or evidence that constitute, or seek disclosure of,
information protected under a legally recognized privilege.
Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May
Require Hearing and Must Have Opportunity To Submit Written Questions
Comments: Many commenters supported Sec. 106.45(b)(6)(ii), making
hearings optional for elementary and secondary schools and prescribing
a right for parties to submit written questions to other parties and
witnesses prior to a determination regarding responsibility whether a
hearing is held or not. Commenters asserted that high school students
deserve due process protections as much as college students, and
believed that this provision provides adequate due process in
elementary and secondary schools while taking into account that
students in elementary and secondary schools are usually under the age
of majority.
Other commenters recounted personal experiences with family members
being accused of sexual misconduct as high school students and argued
that the required live hearings with cross-examination in Sec.
106.45(b)(6)(ii) should also apply in high schools.
Some commenters asserted that this provision should be modified to
require live hearings and cross-examination in elementary and secondary
schools, but only for peer-on-peer sexual harassment allegations;
commenters argued that this level of due process was more consistent
with Goss and Mathews \1387\ and where the allegations involve peers,
the parties are on equal footing such that a hearing will effectively
reduce risk of erroneous outcomes.
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\1387\ Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975);
Mathews v. Eldridge, 419 U.S. 565 (1975).
---------------------------------------------------------------------------
Commenters requested that this provision be modified to expressly
state that live hearings are not required in elementary and secondary
schools, instead of the phrasing that the grievance process ``may
require a live hearing.''
Commenters called the written question process in this provision
appropriately fair, flexible, and trauma-informed, and consistent with
recommendations in the withdrawn 2011 Dear Colleague Letter. Commenters
asserted that this provision, more so than Sec. 106.45(b)(6)(i),
balances the potential benefits of cross-examination with the drawbacks
of a live hearing, including the chilling effect on complainants, the
significant cost to recipients, and the potential for errors and poor
spur-of-the-moment judgment calls in a setting with critically high
stakes. Many commenters approved of this provision and urged the
Department to make it apply also to postsecondary institutions in
replacement of Sec. 106.45(b)(6)(i) under which live hearings and
cross-examination are required.
Some commenters opposed this provision, asserting that even a
written form of cross-examination exposes elementary and secondary
school students to unnecessarily hostile proceedings and limits the
discretion of local educators who are more knowledgeable about their
students and school communities, obligating schools to expend valuable
resources in an unwarranted manner. Commenters argued that this
provision would allow five year old students (or their parents or
advisors) to face off against other five year old students about the
veracity of allegations with written questions and responses being
exchanged. Commenters argued this is inappropriate because it does not
take into account how to obtain information from young children or
students with disabilities, creates an air of intimidation and
potential revictimization, allows confidential information to be shared
with ``countless individuals'' whereas an
[[Page 30363]]
appeal could address concerns about the investigation without sharing
FERPA-protected information, and formal discipline proceedings
involving potential exclusion of a public school student are already
subject to State laws giving sufficient due process protections to an
accused student.
Commenters argued that in elementary and secondary schools, a
formal investigation process is not always needed or advisable because
often State law may require school interventions prior to when
exclusionary discipline is considered. Commenters argued that this
provision perpetuates America's patriarchal culture that already does
not believe survivors, because this provision allows survivors to be
questioned when we do not question someone who goes to the police and
says they were robbed or someone who reports being hit by a car, so
questioning sexual assault victims just gives perpetrators a chance to
terrorize the victim again and fails to convey to the victim respect,
belief, or justice.
Commenters asserted that this provision essentially provides the
non-hearing equivalent of cross-examination via the written submission
of questions, but argued this will be difficult for elementary and
secondary school officials to implement without significant legal
guidance because the purpose of cross-examination is to judge
credibility and officials will not know how to accomplish that purpose.
Commenters argued it is unclear how many back-and-forth follow-up
questions need to be allowed in this ``quasi-cross examination
process'' and asserted that this process will result in even greater
hesitation among classmates to offer information about the parties
involved, because peer pressure looks different among susceptible
children and adolescents than with college-age students and already
works against ``tattling'' or ``ratting'' on fellow students.
Commenters expressed concern that the written ``cross-examination''
procedure will delay the ability of schools to timely respond to sexual
harassment complaints, that this procedure is not already in use by
schools, and that a cycle of written questions at the end of already
overly formal, prescribed procedures will only serve to extend the time
frame for completing investigations impairing an elementary and
secondary school recipient's ability to effectuate meaningful change to
student behavior if the behavior is found to be misconduct.
Commenters opposed this provision and urged the Department to
remove the option for live hearings, because even permitting elementary
and secondary schools the discretion to hold live hearings adds the
possibility of a new layer to the investigative process that could
subject a young student to cross-examination, which would intimidate
and retraumatize victims.\1388\ Commenters argued that research has
consistently shown the extreme importance of handling investigations
and interviews properly when dealing with childhood sexual abuse
situations, that subjecting child victims of sexual abuse to multiple
interviews is re-traumatizing and that the interview process should be
conducted with an interdisciplinary team and trained mental health
professionals utilizing trauma-informed practices, yet Sec.
106.45(b)(6)(ii) would allow school administrators to ignore all of
these best practices that are in the interest of protecting young
victims,\1389\ subjecting abused children to secondary
victimization.\1390\
---------------------------------------------------------------------------
\1388\ Commenters cited the Zydervelt 2016 study discussed in
the ``Section 106.45(b)(6)(i) Postsecondary Institution Recipients
Must Provide Live Hearings with Cross-Examination'' subsection of
the ``Hearings'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble, for the
proposition that cross-examination often relies on victim-blaming
attitudes, sex stereotypes, and rape myths.
\1389\ Commenters cited: Monit Cheung & Needha McNeil
Boutt[eacute]-Queen, Assessing the Relative Importance of the Child
Sexual Abuse Interview Protocol Items to Assist Child Victims in
Abuse Disclosure, 25 Journal of Family Violence 11 (2010); John F.
Tedesco & Steven V. Schnell, Children's Reactions to Sex Abuse
Investigation and Litigation, 11 Child Abuse & Neglect 2 (1987);
Joseph H. Beitchman et al., A Review of the Long-term Effects of
Child Sexual Abuse, 16 Child Abuse & Neglect 1 (1992).
\1390\ Commenters cited: Janet Leach Richards, Protecting Child
Witnesses in Abuse Cases, 34 Family L. Quarterly 393 (2000).
---------------------------------------------------------------------------
Commenters argued that the Supreme Court has held, even in the
criminal law context, that a State's interest in protecting child abuse
victims outweighs an accused's constitutional right to face-to-face
confrontation of witnesses.\1391\ Commenters argued that child sexual
abuse is far too common an experience among America's schoolchildren,
and teachers, counselors, and principals have no training in, and are
not, forensic interviewers, criminal investigators, judges, or evidence
technicians, and thus no school district should even be allowed to
choose a live hearing model for sexual misconduct allegations.
Commenters stated that live hearings place a sharp spotlight on both
parties, and students in elementary and secondary schools typically
lack the maturity necessary to participate. Commenters argued that live
hearings should not even be optional in elementary and secondary
schools because it is difficult to imagine any positive effects of a
respondent's attorney cross-examining a sixth grader alleging sexual
harassment at school or a complainant's attorney cross-examining the
alleged perpetrator. Commenters argued that live hearings should only
be allowed for elementary and secondary schools if otherwise required
under State law. Commenters stated that if live hearings are even an
option, school districts will be inundated with requests to hold
adversarial live hearings.
---------------------------------------------------------------------------
\1391\ Commenters cited: Maryland v. Craig, 497 U.S. 836 (1990).
---------------------------------------------------------------------------
Commenters asked for clarity as to which circumstances require an
elementary and secondary school recipient to hold a live hearing, who
would preside over a hearing, whether the hearing would need to be held
on school grounds, and what responsibility the school district would
have to mitigate re-traumatization, or whether if a school district
opts to hold live hearings all the provisions in Sec. 106.45(b)(6)(i)
would then apply.
Commenters inquired whether a vocational school that is neither an
elementary or secondary school, nor an institution of higher education,
would have to follow Sec. 106.45(b)(6)(i), Sec. 106.45(b)(6)(ii), or
some other process for Title IX adjudications.
Commenters suggested that this provision be modified to state that
a minor has the right for a parent to help the minor student pose
questions and answer questions but that the parent (or advisor) is not
allowed to write the questions or answers without input from the minor
student; commenters reasoned that it would be unfair if a respondent
was an adult capable of strategically posing questions while a minor
complainant lacked the developmental ability to do the same. Other
commenters argued that written submission of questions by the parties
should never be allowed in the elementary and secondary school context
because the procedure is likely to devolve into a fight between the
parents of the complainant and parents of the respondent, further
traumatizing both children involved.
Discussion: The Department appreciates commenters' support for
Sec. 106.45(b)(6)(ii) making hearings optional for elementary and
secondary schools while providing opportunity for the parties to submit
written questions and follow-up questions to other parties and
witnesses with or without a hearing. The Department agrees that this
provision ensures due process
[[Page 30364]]
protections and fairness while taking into account that students in
elementary and secondary schools are usually under the age of majority.
Thus, the Department declines to mandate hearings and cross-examination
for elementary and secondary schools, including only as applied to
allegations of peer-on-peer harassment, or to high schools. Even where
the parties are in a peer age group, parties in elementary and
secondary schools generally are not adults with the developmental
ability and legal right to pursue their own interests on par with
adults. The Department is persuaded by commenters' concerns that the
language in this provision should state even more clearly that hearings
are optional and not required, and has revised this provision to state
that ``the recipient's grievance process may, but need not, provide for
a hearing.'' For the reasons explained in the ``Section 106.45(b)(6)(i)
Postsecondary Institution Recipients Must Provide Live Hearing with
Cross-Examination'' subsection of the ``Hearings'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section of
this preamble, the Department declines to make Sec. 106.45(b)(6)(ii)
applicable to postsecondary institutions.
The Department disagrees that the written submission of questions
procedure in this provision exposes students to hostile proceedings,
unnecessarily limits the discretion of local school officials, or
obligates school districts to expend resources in an unwarranted
manner. While due process of law is a flexible concept, at a minimum it
requires notice and a meaningful opportunity to be heard, and the
Department has determined that with respect to sexual harassment
allegations under Title IX, both parties deserve procedural protections
that translate those due process principles into meaningful rights for
parties and increase the likelihood of reliable outcomes. This
provision prescribes written submission of questions prior to
adjudication, a procedure that benefits the truth-seeking purpose of
the process even when the rights of a young student are exercised by a
parent or legal guardian.
The final regulations do not preclude a recipient from providing
training to an investigator concerning effective interview techniques
applicable to children or to individuals with disabilities. Even when a
party's rights are being exercised by a parent, each party's interest
in the case is best advanced when the parties have the right to review
and present evidence; the Department disagrees that the Sec. 106.45
grievance process results in confidential information being shared with
``countless individuals'' or in violation of FERPA.\1392\ Section
106.71 directs recipients to keep confidential the identity of any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness, except as may be permitted by the FERPA
statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as
required by law, or to carry out the purposes of 34 CFR part 106,
including these final regulations.
---------------------------------------------------------------------------
\1392\ For further discussion see the ``Section 106.6(e) FERPA''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble.
---------------------------------------------------------------------------
The Department appreciates commenters' concerns that State laws
already govern disciplinary proceedings, especially with respect to
exclusionary discipline. The Department has determined that the
procedural protections in Sec. 106.45 best serve the interests
implicated in resolution of allegations of sexual harassment under
Title IX, a Federal civil rights law, and discipline for non-Title IX
matters does not fall under the purview of these final regulations. To
the extent that these final regulations provide the same protections as
State laws governing student discipline already provide, these final
regulations pose no challenge for recipients; to the extent that a
recipient cannot comply with both State law and these final
regulations, these final regulations, as Federal law, would
control.\1393\
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\1393\ For further discussion see the ``Section 106.6(h)
Preemptive Effect'' subsection of the ``Clarifying Amendments to
Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------
The Department disputes a commenter's contention that only sexual
assault survivors are ``questioned'' when they report being assaulted;
contrary to the commenter's assertion, robbery victims and hit-and-run
victims are also ``questioned'' during criminal or civil proceedings.
Similarly, students accused of cheating also are often questioned.
Whether or not commenters accurately describe American culture as
``patriarchal,'' the Department believes that these final regulations
further the sex-equality mandate of Title IX by ensuring fair, accurate
determinations regarding responsibility where sexual harassment is
alleged under Title IX, so that sexual harassment victims receive
remedies from recipients to promote equal educational access.
The Department disagrees that this provision will require
significant legal guidance for school officials to comply. The
provision gives each party the opportunity to submit written questions
to be asked of other parties and witnesses, including limited follow-up
questions. The decision-maker then objectively evaluates the answers to
such questions, and any other relevant evidence gathered and presented
during the investigation and reaches a determination regarding
responsibility. Although observing demeanor is not possible without
live cross-examination, a decision-maker may still judge credibility
based on, for example, factors of plausibility and consistency in party
and witness statements. Specialized legal training is not a
prerequisite for evaluating credibility, as evidenced by the fact that
many criminal and civil court trials rely on jurors (for whom no legal
training is required) to determine the facts of the case including the
credibility of witnesses.
This provision requires ``limited follow-up questions'' and leaves
recipients discretion to set reasonable limits in that regard. The
Department understands commenters' concerns that witnesses face peer
pressure in many sexual harassment situations, and that stating factual
information may be viewed as ``tattling'' or ``ratting out'' friends or
fellow students which may be very uncomfortable for witnesses. Nothing
in these final regulations purports to authorize recipients to compel
witness participation in a grievance process, and Sec. 106.71(a)
protects every individual from retaliation for participating or
refusing to participate in a Title IX proceeding.
The Department understands commenters' concerns that the written
submission of questions procedure in Sec. 106.45(b)(6)(ii) may be a
new procedure in elementary and secondary schools, and the concern that
such a procedure may create a ``cycle'' that extends the time frame for
concluding a grievance process. To clarify that the written submission
of questions procedure need not delay conclusion of the grievance
process, we have revised Sec. 106.45(b)(6)(ii) to state that the
opportunity for each party to submit written questions to other parties
and witnesses must take place after the parties are sent the
investigative report, and before the determination regarding
responsibility is reached. Because Sec. 106.45(b)(5)(vii) gives the
parties ten
[[Page 30365]]
days \1394\ to submit a response to the investigative report, this
revision to Sec. 106.45(b)(6)(ii) makes it clear that the written
submission of questions procedure may overlap with that ten-day period,
so that the written questions procedure need not extend the time frame
of the grievance process.
---------------------------------------------------------------------------
\1394\ As noted in the ``Other Language/Terminology Comments''
subsection of the ``Section 106.30 Definitions'' section of this
preamble, the final regulations allow recipients to choose how to
calculate ``days'' as used in these final regulations; a recipient
may, for instance, calculate a ten-day period by calendar days,
school days, business days, or other method.
---------------------------------------------------------------------------
In order to leave school districts as much flexibility as possible
while creating a consistent, predictable grievance process framework,
the Department declines to foreclose the option of holding hearings
(whether ``live'' or otherwise) in elementary and secondary schools.
Local school officials, for example, could determine that their
educational community is best served by holding live hearings for high
school students, for students above a certain age, or not at all.\1395\
State law may prescribe hearings for school discipline matters, in
which case by leaving hearings optional these final regulations makes a
conflict with State laws less likely. Further, the final regulations
clarify that this provision applies not only to elementary and
secondary schools but also to any other recipient that is not a
postsecondary institution, and the nature of such a recipient's
operations may lead such a recipient to desire a hearing model for
adjudications. For these reasons the final regulations leave hearings
optional regardless of whether State law requires hearings. The
Department understands commenters' concerns that if hearings are an
option, school districts may become ``inundated'' with requests to hold
hearings. The Department reiterates that this provision does not
require elementary or secondary schools to use hearings (live or
otherwise) to adjudicate formal complaints under Title IX, and any
choice to do so remains within a recipient's discretion.
---------------------------------------------------------------------------
\1395\ The Department notes that this provision states that non-
postsecondary institution recipients' grievance processes may, but
need not, provide for a hearing. Therefore, the recipient has
flexibility to make a hearing available on a case by case basis, for
example where the Title IX Coordinator determines a hearing is
needed, so long as the grievance process (of which the recipient's
students and employees receive notice, pursuant to Sec. 106.8)
clearly identifies the circumstances under which a hearing may, or
may not, be held. A recipient's discretion in this regard is limited
by the introductory sentence in Sec. 106.45(b) that any rules
adopted by a recipient must apply equally to both parties. Thus, a
recipient's grievance process could not, for example, state that a
hearing will be held only if a respondent requests it, or only if a
complainant agrees to it, but could state that a hearing will be
held only if both parties request it or consent to it.
---------------------------------------------------------------------------
As noted above, nothing in the final regulations precludes a
recipient from training investigators in best practices for
interviewing children, and the final regulations minimize the number of
times a young victim might have to be interviewed, by not requiring
appearances at live hearings. The Department understands that school
officials are not forensic or criminal investigation experts, and
recognizes that in many situations, conduct that constitutes sexual
harassment as defined in Sec. 106.30 will also constitute sexual abuse
resulting in law enforcement investigations. These final regulations
contemplate the intersection of a recipient's investigation under Title
IX with concurrent law enforcement activity, expressly stating that
good cause may exist to temporarily delay the Title IX grievance
process to coordinate or cooperate with a concurrent law enforcement
investigation. The Department disagrees that these final regulations
require schools to disregard best practices with respect to
interviewing child sex abuse victims and reiterate that the final
regulations do not preclude a recipient from training Title IX
personnel in interview techniques sensitive to the unique needs of
traumatized children.
If an elementary and secondary school recipient chooses to hold a
hearing (live or otherwise), this provision leaves the recipient
significant discretion as to how to conduct such a hearing, because
Sec. 106.45(b)(6)(i) applies only to postsecondary institutions. The
Department desires to leave elementary and secondary schools as much
flexibility as possible to apply procedures that fit the needs of the
recipient's educational environment. The Department notes that Sec.
106.45(b) requires any rules adopted by a recipient for use in a Title
IX grievance process, other than those required under Sec. 106.45,
must apply equally to both parties. Within that restriction, elementary
and secondary school recipients retain discretion to decide how to
conduct hearings if a recipient selects that option.
In response to commenters wondering whether hearings are optional
or required for a recipient that is neither a postsecondary institution
nor an elementary and secondary school, the Department has revised
Sec. 106.30 to define ``postsecondary institution'' and ``elementary
and secondary school'' and clarify that Sec. 106.45(b)(6)(ii) applies
to elementary and secondary schools and any ``other recipient that is
not a postsecondary institution.''
In response to commenters concerned about whether a minor party has
the right to have a parent help pose questions and answers under this
provision, we have added Sec. 106.6(g) to clarify that nothing in
these regulations changes or limits the legal rights of parents or
guardians to act on behalf of a party. The Department declines to
specify whether a parent writing out questions or answers on behalf of
the student-party must consult their child; this matter is addressed by
other laws concerning the scope of a parent's legal right to act on
behalf of their child. The Department understands commenters' concerns
that the written submission of questions procedure may ``devolve into a
fight'' between parents of minor parties, but reiterates that
recipients retain discretion to adopt rules of decorum that, for
example, require questions to be posed in a respectful manner (e.g.,
without using profanity or irrelevant ad hominem attacks). Further, the
decision-maker has the obligation to permit only relevant questions to
be asked and must explain to the party posing the question any decision
to exclude a question as not relevant.
Changes: The Department has revised Sec. 106.45(b)(6)(ii) to
clarify that it applies to elementary and secondary schools and to
``other recipients that are not postsecondary institutions,'' and to
clarify that ``the recipient's grievance process may, but need not,
provide for, a hearing.'' We have further revised Sec.
106.45(b)(6)(ii) to provide that, with or without a hearing, after the
recipient has sent the investigative report to the parties pursuant to
Sec. 106.45(b)(5)(vii) and before reaching a determination regarding
responsibility, the decision-maker(s) must afford each party the
opportunity to submit written, relevant questions that a party wants
asked of any party or witness, provide each party with the answers, and
allow for additional, limited follow-up questions from each party.
We have added definitions of ``elementary and secondary schools''
and ``postsecondary institutions'' in Sec. 106.30. We have also added
Sec. 106.6(g) acknowledging that nothing in these final regulations
abrogates the legal rights of parents or guardians to act on behalf of
party. We have added Sec. 106.71 directing recipients to keep
confidential the identity of any individual who has made a report or
complaint of sex discrimination, including any individual who has made
a report or filed a formal complaint of sexual harassment, any
complainant, any individual who has been reported to be the perpetrator
of sex discrimination, any respondent, and any witness, except
[[Page 30366]]
as may be permitted by the FERPA statute or regulations, 20 U.S.C.
1232g and 34 CFR part 99, or as required by law, or to carry out the
purposes of 34 CFR part 106, including these final regulations.
Comments: Some commenters supported or opposed the rape shield
protections in Sec. 106.45(b)(6)(ii) for the same reasons stated in
support of or opposition to the same language in Sec.
106.45(b)(6)(ii); see discussion under the ``Section 106.45(b)(6)(i)
Postsecondary Institution Recipients Must Provide Live Hearings with
Cross-Examination'' subsection of the ``Hearings'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section of
this preamble.
Some commenters argued that the two exceptions should be eliminated
with respect to minors because the sexual behavior of children should
never be relevant or asked about or because minors cannot legally
consent and thus an exception where ``offered to prove consent'' serves
no purpose with respect to minors.
Discussion: The Department's incorporates here its response to
commenters' support and opposition for the rape shield language stated
in the ``Section 106.45(b)(6)(i) Postsecondary Institution Recipients
Must Provide Live Hearings with Cross-Examination'' subsection of the
``Hearings'' subsection of ``Section 106.45 Recipient's Response to
Formal Complaints'' section of this preamble.
The Department disagrees that the two exceptions (or even the
exception that refers to ``consent'') should be eliminated in this
provision because minors cannot legally consent to sexual activity.
While this fact may make the issue of ``consent'' irrelevant in certain
sexual harassment cases, consent may be relevant in other formal
complaints investigated and adjudicated by elementary and secondary
school recipients; for example, where the parties are over the age of
consent in the relevant jurisdiction, or the age difference between the
two minor parties is such that State law decriminalizes consensual
sexual activity between the two individuals.\1396\ The Department will
defer to State law regarding the age when a person has the ability to
consent. Further, we have revised this provision in the final
regulations to clarify that it applies not only to elementary and
secondary schools but also to other recipients that are not
postsecondary institutions, and parties associated with such ``other
recipients'' may be adults rather than children. The Department thus
retains the rape shield language in this provision, including the two
exceptions, mirroring the rape shield language used in Sec.
106.45(b)(6)(i).
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\1396\ The age of consent to sexual activity varies across
States, from age 16 to age 18, and many States have a ``close in age
exemption'' to decriminalize consensual sex between two individuals
who are both under the age of consent. Age of Consent.net, United
States Age of Consent Map, ``What is the legal Age of Consent in the
United States?,'' https://www.ageofconsent.net/states.
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Changes: For the same reasons as discussed under Sec.
106.45(b)(6)(i), the Department has revised the rape shield language in
Sec. 106.45(b)(6)(ii) by clarifying that questions and evidence about
the complainant's prior sexual behavior or predisposition are not
relevant unless such questions or evidence are offered for one of the
two exceptions (offered to prove someone other than the respondent
committed the alleged conduct, or offered to prove consent).
Comments: Some commenters supported or opposed the requirement in
Sec. 106.45(b)(6)(ii) that decision-makers explain the reason for
excluding any question proposed by a party as not relevant, for the
same reasons stated in support or opposition for similar language in
Sec. 106.45(b)(6)(i); see discussion under the ``Section
106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live
Hearings with Cross-Examination'' subsection of the ``Hearings''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble.
Some commenters opposed this requirement because it would
essentially force an elementary and secondary school administrator to
make evidentiary determinations that can be difficult even for lawyers
and judges. Commenters opposed this requirement based on personal
experience handling questions from minor parties and their parents in
Title IX proceedings and observing that many questions posed by parents
are irrelevant, so having to explain the relevance of each excluded
question would draw out the length of proceedings unnecessarily.
Discussion: The Department incorporates here its response to
commenters' support of and opposition to the similar provision in Sec.
106.45(b)(6)(i) under which the decision-maker must explain any
decision to exclude questions as not relevant; see the ``Section
106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live
Hearings with Cross-Examination'' subsection of the ``Hearings''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble.
The Department appreciates commenters' concerns that based on
experience with parents exercising rights on behalf of students during
Title IX proceedings, parents tend to pose a lot of irrelevant
questions. The Department believes the burden of this requirement is
outweighed by the right of parties (including when a party's rights are
exercised by parents) to meaningfully participate in the grievance
process through posing questions to the other party and witnesses, and
understanding why a question has been deemed irrelevant is important to
ensure that the parties feel confident that their perspectives about
the facts and evidence are appropriately taken into account prior to
the determination regarding responsibility being reached.
Changes: None.
Determinations Regarding Responsibility
Section 106.45(b)(7)(i) Single Investigator Model Prohibited
Benefits of Ending the Single Investigator Model
Comments: Many commenters supported the NPRM's prohibition on the
single investigator model because it would reduce the risk of bias and
unfairness. Commenters argued that ending the single investigator model
would decentralize power from one individual, allow for checks and
balances, reduce the risk of confirmation bias, and increase the
overall fairness and reliability of Title IX proceedings. Commenters
stated that a strict separation of investigative and decision-making
functions is essential because it is unrealistic to expect a person to
fairly review their own investigative work. One commenter argued that
procedural protections are necessary but not sufficient to render fair
outcomes; the commenter stated it is also necessary to prohibit,
detect, and eliminate bias. The commenter argued that unbiased
adjudicators are a bedrock principle of any disciplinary proceeding,
and this principle has been well understood since the founding of this
country and development of the common law.\1397\ Several commenters
[[Page 30367]]
asserted that schools are currently facing significant pressure from
the media and general public to achieve ``social justice'' and find
respondents guilty. Commenters argued that blending the investigative
and adjudicative functions increases the risk of false positives (i.e.,
inaccurate findings of responsibility).
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\1397\ Commenters cited: The Federalist No. 10 (J. Madison)
(``No man is allowed to be a judge in his own cause; because his
interest would certainly bias his judgment, and, not improbably,
corrupt his integrity.''). At least one commenter cited: Caperton v.
A.T. Massey Coal Co., Inc., 556 U.S. 868, 867, 877 (2009) (common
law recognized the need for unbiased adjudicators, and the U.S.
Constitution incorporated and expanded upon the protections at
common law against biased adjudicators).
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Several commenters submitted personal stories where investigators
under the single investigator model acted improperly, for instance by
meeting with complainants but not respondents, failing to promptly
notify the respondent of charges, withholding evidence, ignoring
exculpatory evidence, ignoring inconsistencies in complainant's
testimony, framing language in an inflammatory way against the
respondent, relying on triple hearsay favoring the complainant, and
entering a suspected personal relationship with the complainant.
Commenters stated that improper or biased actions by an investigator
might at least be recognized and corrected where the decision-maker is
a different person. A few commenters asserted that ending the single
investigator model would reinforce a genuine live hearing process with
cross-examination. One commenter suggested that the single investigator
model precludes effective confrontation of witnesses because even where
there is a live hearing the investigator's finding is a ``heavy thumb
on the scale.'' Commenters noted that under the single investigator
model often there is no live hearing at all where parties can probe
each other's credibility, and no opportunity for parties to know what
evidence the investigator is considering before rendering an ultimate
decision.
Discussion: The Department appreciates the support from commenters
for Sec. 106.45(b)(7)(i) of the final regulations which, among other
things, would require the decision-maker to be different from any
person who served as the Title IX Coordinator or investigator, thus
foreclosing recipients from utilizing a ``single investigator'' or
``investigator-only'' model for Title IX grievance processes. The
Department believes that fundamental fairness to both parties requires
that the intake of a report and formal complaint, the investigation
(including party and witness interviews and collection of documentary
and other evidence), drafting of an investigative report, and ultimate
decision about responsibility should not be left in the hands of a
single person (or team of persons each of whom performed all those
roles). Rather, after the recipient has conducted its impartial
investigation, a separate decision-maker must reach the determination
regarding responsibility; that determination can be made by one or more
decision-makers (such as a panel), but no decision-maker can be the
same person who served as the Title IX Coordinator or investigator.
Commenters correctly noted that separating the investigative and
decision-making functions will not only increase the overall fairness
of the grievance process but also will increase the reliability of
fact-finding and the accuracy of outcomes, as well as improve party and
public confidence in outcomes. Combining the investigative and
adjudicative functions in a single individual may decrease the accuracy
of the determination regarding responsibility, because individuals who
perform both roles may have confirmation bias and other prejudices that
taint the proceedings, whereas separating those functions helps prevent
bias and prejudice from impacting the outcome.
Changes: None.
Consistency With Case Law
Comments: Several commenters contended that ending the single
investigator model would be consistent with case law. Commenters cited
cases where courts overturned recipient findings against respondents,
raised concerns regarding preconceptions and biases that may arise
where a single person has the power to investigate, prosecute, and
convict, and asserted that a single investigator model can impede
effective cross-examination and credibility determinations.\1398\ On
the other hand, some commenters cited case law to suggest the single
investigator model can be fair and appropriate.\1399\
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\1398\ Commenters cited: Doe v. Claremont McKenna Coll., 25 Cal.
App. 5th 1055, 1072-73 (Cal. App. 2018) (all decision makers ``must
make credibility determinations, and not simply approve the
credibility determinations of the one Committee member who was also
the investigator.''); Doe v. Miami Univ., 882 F.3d 579, 601, 605
(6th Cir. 2018) (court found ``legitimate concerns'' raised by the
investigator's ``alleged dominance on the three-person [decision
making] panel,'' because ``she was the only one of the three with
conflicting roles.''); Doe v. Brandeis Univ., 177 F. Supp. 3d 561,
573 (D. Mass. 2016) (referring to the ``obvious'' ``dangers of
combining in a single individual the power to investigate,
prosecute, and convict, with little effective power of review'');
Doe v. Allee, 30 Cal. App. 5th 1036, 1068 (Cal. App. 2019) (``As we
have explained, in U.S.C.'s system, no in-person hearing is ever
held, nor is one required. Instead, the Title IX investigator
interviews witnesses, gathers other evidence, and prepares a written
report in which the investigator acts as prosecutor and tribunal,
making factual findings, deciding credibility, and imposing
discipline. The notion that a single individual, acting in these
overlapping and conflicting capacities, is capable of effectively
implementing an accused student's right of cross-examination by
posing prepared questions to witnesses in the course of the
investigation ignores the fundamental nature of cross-examination:
Adversarial questioning at an in-person hearing at which a neutral
fact finder can observe and assess the witness' credibility.'').
\1399\ Commenters cited: Withrow v. Larkin, 421 U.S. 35, 49
(1975) (rejecting the argument that a ``combination of investigative
and adjudicative functions necessarily creates an unconstitutional
risk of bias''); Hess v. Bd. of Trustees of So. Ill. Univ., 839 F.3d
668 (7th Cir. 2016) (bias of decision-maker would violate due
process, but combination of investigative and adjudicative functions
into a single person does not, by itself, demonstrate that the
decision-maker is actually biased); Pathak v. Dep't. of Veterans
Affairs, 274 F.3d 28, 33 (1st Cir. 2001); Doe v. Purdue Univ., 281
F. Supp. 3d 754, 779 (N.D. Ind. 2017), aff'd, Doe v. Purdue Univ.,
928 F.3d 652 (7th Cir. 2019).
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Discussion: The Department appreciates commenters' input on the
consistency of the single investigator model with case law. We
acknowledge that the Supreme Court has held that a biased decision-
maker violates due process but that combining the investigative and
adjudicative functions in a single agency does not present a
constitutional due process problem.\1400\ The final regulations comport
with that holding, inasmuch as a single recipient is expected to
perform the investigative and adjudicative roles in a Title IX
grievance process. As noted by commenters, lower courts have reached
mixed results as to whether a single person performing the
investigative and adjudicative functions in a student misconduct
process violates due process.\1401\
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\1400\ Kenneth Oshita, Home Court Advantage? The SEC and
Administrative Fairness, 90 S. Cal. L. Rev. 879, 902 (2017) (noting
that the Supreme Court established that ``the combination of
investigative and adjudicative functions does not, without more,
constitute a due process violation'' but continuing,
``Interestingly, the Withrow Court recognized that a biased
adjudicator is `constitutionally unacceptable' and that `our system
of law has always endeavored to prevent even the probability of
unfairness.' Yet, even recognizing the importance of fairness in
this constitutional principle, the Court reasoned that the
combination of functions within an agency is constitutionally
acceptable.'') (citing Withrow v. Larkin, 421 U.S. 35, 49 (1975)).
\1401\ E.g., Richard H. Underwood, Administrative Adjudication
in Kentucky: Ethics and Unauthorized Practice Considerations, 29 N.
Ky. L. Rev. 359, 361 (2002) (``[T]he case law generally rejects the
proposition that a combination of functions in one agency
necessarily creates an unconstitutional risk of bias, or that such a
combination automatically constitutes a denial of due process such
as to warrant disqualification of the involved administrative
adjudicator. On the other hand, when functions are combined in a
single individual, the case for disqualification for `unfairness' or
bias is stronger. How can an administrative adjudicator deal fairly
with a party or parties if he or she has performed other functions--
investigatory or prosecutorial--in the same matter?'') (internal
quotation marks and citations omitted; emphasis added).
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Notwithstanding whether the single investigator model withstands
constitutional scrutiny under due process requirements, the Department
believes that combining these functions raises an unnecessary risk of
bias that
[[Page 30368]]
may unjustly impact one or both parties in a given Title IX
proceeding.\1402\ Particularly because the stakes are so high in these
cases, with potentially life-altering consequences that may flow from a
decision in favor of either party, the Department believes that
separating investigation from decision making is important to promote
the overall fairness of the process.
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\1402\ Michael R. Lanzarone, Professional Discipline: Unfairness
and Inefficiency in the Administrative Process, 51 Fordham L. Rev.
818, 827 (1983) (noting that the ``commingling of investigatory and
adjudicatory functions'' is a ``daily occurrence in [professional]
disciplinary proceedings. The Supreme Court in [Withrow v. Larkin,
421 U.S. 35 (1975)], however, concluded that the Constitution
tolerates such commingling. Entirely apart from any specific
constitutional infirmities, the question remains whether the basic
unfairness of the procedure counsels against its use.'') (internal
citations omitted); id. at fn. 60 (``There are dangers in allowing
an individual who has investigated misconduct and determined that
there is probable cause to suspend a professional's license to sit
as a trier of fact in a later de novo hearing. The state board that
is responsible for professional discipline may view its role as more
of a prosecutor than as a disinterested finder of fact. A board of
education may find it difficult to be unbiased when the chief
executive of the school district has already recommended dismissal
of a tenured teacher. And the danger of bias undoubtedly increases
when an individual actually conducts an investigation (as opposed to
passing upon another's work) and then sits as the trier of fact to
hear and pass upon the credibility of witnesses.'').
---------------------------------------------------------------------------
Changes: None.
Alternative Approaches To Ending Single Investigator Model
Comments: Some commenters asserted that ending the single
investigator model is unnecessary to reduce bias and may in fact
increase the risk of unfairness. Commenters argued that Title IX
investigators are highly-trained professionals who are often most
familiar with the evidence and best-positioned to make credibility
determinations and render consistent decisions. These commenters
suggested that requiring different decision-makers may increase the
risk of overlooked details and incorrect outcomes because other persons
may not be as close to the evidence as investigators.
Some commenters argued that hybrid models are adequate and can
satisfy due process concerns because, for example, hybrid models in use
by some recipients use an investigator (or team of investigators) to
gather evidence and write up recommendations about responsibility yet
allow both parties to review gathered evidence and pose questions to
each other, and hold live hearings for the sanctioning and appeals
processes, while parties may resort to civil litigation to challenge
the school's proceedings. One commenter acknowledged the possibility of
bias within the single investigator model and recommended a hybrid
system involving investigation by an impartial investigator followed by
referral to a student conduct system for live hearing. One commenter
proposed that the Department's concern regarding bias with the single
investigator model could be addressed through less restrictive means,
such as by allowing parties to assert alleged bias before or during an
investigation and by offering an appeal to a different decision-maker
to consider alleged bias during the investigation. One commenter
suggested that the Department allow recipients who use two
investigators to also use them as decision-makers. This commenter
argued that two investigators are in the best position to review all
the evidence and determine responsibility and appropriate sanction;
moreover, ensuring two investigators assigned to each case prevents any
one person from being decision-maker and allows the second person to
serve as an effective check. Other commenters asserted that prohibiting
the single investigator model is unnecessary because the Department
already carefully safeguarded the selection process for investigators,
Title IX Coordinators, and decision-makers by prohibiting bias and
conflicts of interest in Sec. 106.45(b)(1)(iii).
Discussion: The Department believes the robust training and
impartiality requirements for all individuals serving as Title IX
Coordinators, investigators, or decision-makers contained in Sec.
106.45(b)(1)(iii) of the final regulations \1403\ will effectively
promote the reliability of fact-finding and the overall fairness and
accuracy of the grievance process. In addition, the final regulations
require that any materials used to train Title IX personnel must not
rely on sex stereotypes. We believe these measures will promote
consistent outcomes, addressing commenters' concerns about decision-
makers not having the same level of training or expertise as
investigators. Furthermore, Sec. 106.45(b)(5)(vii) requires the
investigator to prepare an investigative report that fairly summarizes
all relevant evidence, and therefore the parties and decision-maker
will be aware of the evidence gathered during the investigation.
---------------------------------------------------------------------------
\1403\ The final regulations revise Sec. 106.45(b)(1)(iii) to
include training for persons who facilitate informal resolution
processes, in addition to Title IX Coordinators, investigators, and
decision-makers.
---------------------------------------------------------------------------
The Department appreciates commenters' suggestion that a ``hybrid''
model could provide many of the same checks against bias and inaccuracy
as complete separation of the investigation and adjudication roles.
However, the Department believes that formally separating the
investigative and adjudicative roles in the Title IX grievance process
is important to reduce the risk and perception of bias, increase the
reliability of fact-finding, and promote sound bases for responsibility
determinations. As such, the Department concludes that adopting the
various less restrictive means that commenters suggested to reduce the
bias inherent in the single investigator model, such as permitting two
investigators to also serve as decision-makers, would not go far enough
to promote these important goals. Consistent with the commenters'
suggestion, however, the Department also emphasizes that Sec.
106.45(b)(8), in addition to requiring that recipients offer appeals
for both parties, explicitly permits either party to assert that the
Title IX Coordinator, investigator, or decision-maker had a conflict of
interest or bias. These provisions are meant to reinforce each other in
increasing the fairness of Title IX proceedings.
Changes: None.
Chilling Reporting and Other Harmful Effects
Comments: Commenters suggested that ending the single investigator
model would increase the number of people who must be involved in the
Title IX process, and this may increase the risk of untrained and
biased people shaming survivors and not believing in them, and also
lead to re-traumatization for survivors having to share their stories
multiple times. Commenters suggested that ending the single
investigator model reinforces the requirement for traumatizing and
unnecessary live hearings with cross-examination, which could
discourage reporting. Commenters argued that the single investigator
model reduces pressure on both parties because the investigator can
interact with each party in a less stressful, less adversarial setting.
Commenters asserted that the NPRM's prohibition of the single
investigator model could be problematic under Title IX and potentially
harmful to parties who want closure, because requiring a separate
decision-maker could lengthen the adjudicative process, make it less
efficient, and delay resolutions. One commenter argued that ending the
single investigator model could frustrate the NPRM's due process goals,
by perversely incentivizing recipients to avoid the NPRM's formal
grievance process through informal resolution, or incentivize schools
to not provide an
[[Page 30369]]
appeal process due to added compliance costs.
Discussion: The Department does not believe that precluding a
single investigator model for investigations and adjudications will
discourage reporting, traumatize parties, unreasonably lengthen the
grievance process, or incentivize recipients to forgo important due
process protections for parties. Rather, the purpose of formally
separating the investigative and adjudicative functions is to reduce
the risk of bias, increase the reliability of fact-finding, and promote
sound bases for determinations of responsibility. The Department
acknowledges that without a requirement that the decision-maker be
separate from any person that performed the role of Title IX
Coordinator and investigator, a complainant potentially could give a
statement only once--to the single person or team of people performing
all those functions, and that complainants may feel intimidated by
needing speak with more than one person during the course of the
grievance process. Such a necessity, however, is not different from
participation in any typical adjudicative process, whether civil or
criminal, where a complainant (or civil plaintiff, or victim-witness in
a criminal case) would also need to recount the allegations and answer
questions several times during the course of an investigation and
adjudication. Because a grievance process must contain consistent
procedural protections in order to reach factually accurate outcomes,
the final regulations ensure that a complainant retains control over
deciding whether to participate in a grievance process \1404\ and
ensures that a complainant can receive supportive measures to restore
or preserve the complainant's equal access to education regardless of
whether a grievance process is undertaken.\1405\ The final regulations
also permit recipients to offer and facilitate informal resolution
processes which can resolve allegations without a full investigation
and adjudication.\1406\
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\1404\ E.g., Sec. 106.30 specifies that only a complainant, or
a Title IX Coordinator, can sign or file a formal complainant
initiating the grievance process such that even if a report about
the complainant's alleged victimization is made to the recipient by
a third party, the complainant retains autonomy to decide whether to
file a formal complaint; Sec. 106.30 revises the definition of
``complainant'' to remove the phrase ``or on whose behalf the Title
IX Coordinator files a formal complaint'' to clarify that even when
a Title IX Coordinator does sign a formal complaint initiating a
grievance process, that action is not taken ``on behalf of'' the
complainant, so that the complainant remains in control of when a
formal process is undertaken on the complainant's behalf. The final
regulations removed proposed Sec. 106.44(b)(2) that would have
required a Title IX Coordinator to file a formal complaint upon
receipt of multiple reports against the same respondent, in order to
avoid situations where a Title IX Coordinator would have been forced
(by the proposed rules) to sign a formal complaint over the wishes
of a complainant. The final regulations add Sec. 106.71 prohibiting
retaliation and including under prohibited actions those taken to
dissuade a complainant from reporting or filing and those taken to
punish a complainant (or anyone else) from refusing to participate
in a Title IX proceeding.
\1405\ E.g., Sec. 106.44(a) requires the Title IX Coordinator
promptly to contact each complainant to discuss the availability of
supportive measures (with or without a formal complaint being
filed), consider the wishes of the complainant with respect to
supportive measures, and explain to the complainant the process for
filing a formal complaint.
\1406\ Section 106.45(b)(9) (permitting informal resolutions of
any formal complaint except where the allegations are that an
employee has sexually harassed a student).
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Contrary to the claims made by some commenters that increasing the
number of people who must be involved in the formal grievance process
would increase the risk of using untrained personnel and causing
unfairness, the Department believes that the robust training and
impartiality requirements contained in Sec. 106.45(b)(1)(iii) that
apply to all individuals participating as Title IX Coordinators,
investigators, decision-makers, or persons facilitating informal
resolution processes, reduce these risks. Furthermore, ensuring that
the investigative and adjudicative functions are performed by different
individuals is critical for effective live cross-examination, as other
commenters noted, because under the single investigator model the
decision-maker may be biased in favor of the decision-maker's own
investigative recommendations and conclusions rather than listening to
party and witness statements during a hearing impartially and with an
open mind; similarly, if the decision-maker is the same person as the
Title IX Coordinator the decision-maker may be influenced by
information gleaned from a complainant due to implementation of
supportive measures rather than by information relevant to the
allegations at issue. Moreover, under the single investigator model
often there is no live hearing where parties can probe each other's
credibility and as discussed under Sec. 106.45(b)(6)(i), the
Department believes that live hearings are a critical part of a fair
process in the postsecondary context.
The Department acknowledges concerns that separating the
investigative and adjudicative functions may lengthen the adjudicative
process in some cases. However, we emphasize that Sec. 106.45(b)(1)(v)
of the final regulations requires that the grievance process be
completed within a reasonably prompt time frame, including completion
of a live hearing (for postsecondary institutions). We do not believe
that eliminating the single investigator model will incentivize
recipients to offer informal resolution process to avoid the grievance
process. We have revised Sec. 106.45(b)(9) so that informal
resolutions must be voluntarily agreed to by each party, forbidding
recipients from requiring any party to participate in an informal
process, and preventing recipients from conditioning enrollment,
employment, or any other right on a party's participation in informal
resolution. We have also revised Sec. 106.45(b)(8) to require
recipients to offer appeals equally to both parties, which also must be
subject to a recipient's designated, reasonably prompt time frames;
this revision also ensures that recipients cannot rationalize removal
of the single investigator model as a reason to refuse to offer an
appeal.
Changes: We have revised Sec. 106.45(b)(9) governing informal
resolutions, to forbid recipients from requiring parties to participate
in informal resolution and to preclude recipients from conditioning
enrollment, employment, or enjoyment of rights on a party's
participation in informal resolution. We have revised Sec.
106.45(b)(8) governing appeals to require recipients to offer appeals
equally to both parties, on three specified bases: Procedural
irregularity, newly discovered evidence, or conflict of interest or
bias on the part of Title IX personnel.
Respecting the Roles of Title IX Coordinators and Investigators
Comments: A few commenters asserted that excluding Title IX
Coordinators and investigators from any decision-making role is
inherently insulting to them because it undervalues their training,
professionalism, and expertise. One commenter proposed that the
Department require separate investigators and decision-makers, but not
prohibit Title IX Coordinators from being decision-makers. This
commenter reasoned that Title IX Coordinators are highly trained
professionals and Title IX subject matter experts who are reliably
impartial and that removing their expertise from the equation may
increase the risk of bias, unfairness, and inconsistency across cases.
Discussion: The Department appreciates the integrity and
professionalism of individuals serving as Title IX Coordinators.
However, and as discussed above, given the high stakes involved for all
parties in Title IX
[[Page 30370]]
cases, the Department believes that separating the investigative and
adjudicative functions is essential to mitigate the risk of bias and
unfairness in the grievance process. The final regulations would not
remove the expertise of Title IX Coordinators from the grievance
process. Section 106.45(b)(7)(i) does not prevent the Title IX
Coordinator from serving as the investigator; rather, this provision
only prohibits the decision-maker from being the same person as either
the Title IX Coordinator or the investigator. As other commenters have
pointed out, the final regulations place significant responsibilities
on Title IX Coordinators. Separating the functions of a Title IX
Coordinator from those of the decision-maker is no reflection on the
ability of Title IX Coordinators to serve impartially and with
expertise. Rather, requiring different individuals to serve in those
roles acknowledges that the different phases of a report and formal
complaint of sexual harassment serve distinct purposes. At each phase,
the person responsible for the recipient's response likely will receive
information and have communications with one or both parties, for
different purposes. For example, the Title IX Coordinator must inform
every complainant about the availability of supportive measures and
coordinate effective implementation of supportive measures, while the
investigator must impartially gather all relevant evidence including
party and witness statements, and the decision-maker must assess the
relevant evidence, including party and witness credibility, to decide
if the recipient has met a burden of proof showing the respondent to be
responsible for the alleged sexual harassment. Placing these varied
responsibilities in the hands of a single individual (or even team of
individuals) risks the person(s) involved improperly relying on
information gleaned during one role to affect decisions made while
performing a different role. For example, a Title IX Coordinator may
have a history of communications with the complainant before any formal
complaint has been filed (for instance, due to implementing supportive
measures for the complainant), which may influence the Title IX
Coordinator's perspective about the complainant's situation before the
Title IX Coordinator (if allowed to be the ``decision-maker'') has even
spoken with the respondent. Similarly, an investigator may obtain
information from a party that is not related to the allegations under
investigation during an interview with a party, and if the investigator
also serves as the decision-maker, such unrelated information may
influence that person's decision making, resulting in a determination
that is not based on relevant evidence. Separating the roles of
investigation from adjudication therefore protects both parties by
making a fact-based determination regarding responsibility based on
objective evaluation of relevant evidence more likely.
Changes: None.
Preserving Recipient Autonomy
Comments: Several commenters contended that ending the single
investigator model constitutes Federal overreach into recipient
decision making. Commenters emphasized that recipients vary widely in
size, resources, mission, and composition of students, faculty, and
staff, and that imposing a one-size-fits-all approach on them by ending
the single investigator model is unwise. Commenters argued that,
currently, disciplinary processes are tailored to fit each recipient's
unique needs, including the single investigator model where a recipient
has deemed that to best fit the recipient's needs. Commenters argued
that the Department should not limit school autonomy or dictate how
private institutions allocate their staff.
Discussion: The Department respects the importance of granting
recipients flexibility and discretion to design and implement policies
and procedures that reflect their unique values and the needs of their
educational communities. However, this interest must be balanced with
other important goals, including increasing the reliability of fact-
finding, the overall fairness in the process, and the accuracy of
responsibility determinations. Title IX is a Federal civil rights law
that requires recipients to operate education programs and activities
free from sex discrimination, and when a recipient is presented with
allegations of sexual harassment, the Department and the recipient have
an interest in ensuring that the recipient applies procedures designed
to accurately identify the nature of sexual harassment that has
occurred in the recipient's education program or activity. The
Department believes that separating the investigative and adjudicative
functions most effectively balance the goals of ensuring accurate
identification of sexual harassment and respecting recipients'
autonomy. The Department notes that the final regulations leave
significant flexibility to recipients, including whether the Title IX
Coordinator can also serve as the investigator, whether to use a panel
of decision-makers or a single decision-maker, and whether to use the
recipient's own employees or outsource investigative and adjudicative
functions to professionals outside the recipient's employ.
Changes: None.
Consistency With Federal Law and Employment Practices
Comments: Some commenters argued that ending the single
investigator model would conflict with Federal and State laws and
employment practices. One commenter reasoned that if the respondent is
an employee, then the site administrator with line authority may be in
best position to investigate due to confidentiality with personnel
issues and the Department should not create a conflicting process.
Commenters argued that the NPRM's prohibition of the single
investigator model is unworkable in the employee context, especially
where schools take disciplinary action against at-will employees
because at-will employees do not have the same due process rights to
their jobs as students do to their education. Commenters asserted that
ending the single investigator model could conflict with existing
collective bargaining agreements and faculty handbooks. Commenters also
asserted that the NPRM's application to the employment context is
problematic because workplace harassment is already addressed by Title
VII and State non-discrimination laws.
Discussion: The Department acknowledges efficiency interests and
the value of a recipient's flexibility and discretion to address sexual
misconduct situations involving the recipient's employees, such as by
using site administrators to investigate and adjudicate complaints
against employee-respondents. However, these interests must be balanced
with other important goals, including increasing the reliability of
fact-finding, the overall fairness in the process, and the accuracy of
responsibility determinations. The Department believes that separating
the investigative and adjudicative functions most effectively promotes
these goals. As such, the prohibition of the single investigator model
contained in Sec. 106.45(b)(7)(i) of the final regulations would apply
to all recipients, including elementary and secondary schools and
postsecondary institutions, and it would also equally apply to student
and employee respondents. For reasons discussed in the ``Section
106.6(f) Title VII and Directed Question 3 (Application to Employees)''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble, these final regulations apply
[[Page 30371]]
to any person, including employees, in an education program or activity
receiving Federal financial assistance.
A recipient may use a site administrator to conduct the
investigation into a formal complaint of sexual harassment against an
employee, as long as the site administrator is not the decision-maker,
as set forth in Sec. 106.45(b)(7)(i). In that situation, the recipient
must designate someone other than the site administrator to serve as
the decision-maker. If the recipient would like the site administrator
to serve as the decision-maker, then the recipient must designate
someone other than the site administrator to serve as the investigator.
The Department appreciates the concerns raised by several
commenters that ending the single investigator model may pose untenable
conflict with State laws, the nature of at-will employment
relationships where the respondent is an employee, and with existing
collective bargaining agreements and faculty handbooks. With respect to
potential conflict with State laws regarding the prohibition of the
single investigator model contained in Sec. 106.45(b)(7)(i) of the
final regulations, the final regulations preclude the decision-maker
from being the same person as the Title IX Coordinator or the
investigator, but do not preclude the Title IX Coordinator from serving
as the investigator. Further, the final regulations do not prescribe
which recipient administrators are in the most appropriate position to
serve as a Title IX Coordinator, investigator, or decision-maker, and
leave recipients discretion in that regard, including whether a
recipient prefers to have certain personnel serve in certain Title IX
roles when the respondent is an employee. To generally address
commenters' questions about preemption, the Department has added Sec.
106.6(h) which provides that to the extent of a conflict between State
or local law and Title IX as implemented by Sec. Sec. 106.30, 106.44,
and 106.45, the obligation to comply with Sec. Sec. 106.30, 106.44,
and 106.45 is not obviated or alleviated by any State or local law.
The Department acknowledges that Title VII and Title IX impose
different requirements and that some recipients will need to comply
with both Title VII and Title IX, as reflected in Sec. 106.6(f) of
these final regulations. The Department believes that recipients may
comply with different regulations implementing Title VII and Title IX.
These final regulations require all recipients with actual knowledge of
sexual harassment in an education program or activity of the recipient
against a person in the United States, to respond promptly in a manner
that is not deliberately indifferent, irrespective of whether the
complainant and respondent are students or employees. The grievance
process in Sec. 106.45 does not contradict Title VII or its
implementing regulations in any manner and at most may provide more
process than Title VII requires (such as specifying that a decision-
maker must be a different person than the Title IX Coordinator or
investigator). These final regulations, however, do not expand Title
VII, as these final regulations are promulgated under Title IX. For
further discussion of the intersection between Title VII and these
final regulations, see the ``Section 106.6(f) Title VII and Directed
Question 3 (Application to Employees)'' subsection of the ``Clarifying
Amendments to Existing Regulations'' section of this preamble.
With respect to the general at-will employment doctrine, or the
fact that recipients often have employment contracts or collective
bargaining agreements in place that govern employee misconduct, where
Title IX is implicated the Department has determined that the
protections and rights set forth in these final regulations represent
the most effective ways to promote Title IX's non-discrimination
mandate, and recipients of Federal financial assistance agree to comply
with Title IX obligations as a condition of receiving Federal funds.
Recipients' contractual arrangements with employees must conform to
Federal law, as a condition of receipt of Federal funds.
Changes: None.
Limiting the Prohibition of the Single Investigator Model
Comments: Some commenters supported ending the single investigator
model but argued against a categorical prohibition. One commenter
proposed that the Department only prohibit the single investigator
model where the respondent faces the possibility of expulsion or
dismissal. This commenter argued that more minor cases, such as sexual
harassment claims against respondents for making inappropriate jokes,
can be fairly investigated and resolved by a single person without
bias. However, the commenter reasoned, where the stakes are higher,
such as with a sexual assault allegation and the possibility of
dismissal, then a strict separation of the investigative and
adjudicative functions is justified. The commenter asserted that this
is a logical cost/benefit analysis, especially for smaller recipients.
One commenter suggested that the Department should only prohibit the
single investigator model for larger schools (such as those with over
3,000 students) or for schools that have greater numbers of Title IX
complaints that result in formal investigations (such as ten or more
per year). One commenter requested that the Department prohibit the
single investigator model but exempt recipients that submit a reasoned
written explanation as to why their disciplinary system is fair and
necessary. One commenter urged the Department to allow the single
investigator model, but only where both parties consent to it. Another
commenter emphasized that postsecondary institutions generally have
more resources than elementary and secondary school districts, and
therefore the Department should initially apply the single investigator
prohibition only to postsecondary institutions, and see how effective
it is before applying it to elementary and secondary schools.
Discussion: The Department appreciates the logistical concerns
raised by some commenters regarding an across-the-board prohibition on
the single investigator model contained in the final regulations and
the suggestions for alternative approaches. However, the Department
believes, as discussed above, that separating requiring investigative
and adjudicative roles to be filled by different individuals is
critical for reducing the risk of unfairness, increasing the
reliability of fact-finding, and enhancing the accuracy of Title IX
adjudications. Furthermore, we do not see the propriety in crafting
different sets of procedural requirements under Title IX for recipients
based on their size, the number of Title IX complaints they typically
receive on an annual basis, or the potential severity of the punishment
the respondent may receive if determined to be responsible for the
alleged sexual harassment. It is unclear what criteria would justify an
exemption to the general requirement that the same person cannot
investigate and adjudicate a case, particularly because all the conduct
described as ``sexual harassment'' under Sec. 106.30 is serious
conduct that jeopardizes a victim's equal access to education, and the
Department resists attempts to characterize certain forms of sexual
harassment defined under Sec. 106.30 as automatically warranting more
or less severe sanctions. The Department notes that Sec. 106.45(b)(9)
of the final regulations permits informal resolutions as long as both
parties voluntarily consent to attempt an informal process.
[[Page 30372]]
Informal resolutions under the final regulations would not require more
than one person to facilitate the process. In this regard, the
Department recognizes the importance of giving recipients flexibility
and discretion to satisfy their Title IX obligations in a manner
consistent with their unique values and the needs of their educational
communities, and the wishes of the parties to each formal complaint.
Changes: None.
Requests for Clarification
Comments: Commenters sought clarification on several issues
regarding the NPRM's prohibition of the single investigator model. A
few commenters asked whether the NPRM requires that the Title IX
Coordinator be different than the investigator and, if so, how a Title
IX Coordinator can remain fair and unbiased in situations where the
NPRM requires the Title IX Coordinator to file a formal complaint. One
commenter inquired as to whether the Title IX Coordinator can make
preliminary determinations of responsibility that are then passed along
to the decision-maker. Another commenter requested more clarity as to
whether the NPRM's prohibition on a Title IX Coordinator serving as
decision-maker also applies to appeal decisions. One commenter asked
whether the decision-maker and hearing officer presiding over the live
hearing can be different individuals. Another commenter asserted that
Sec. 106.45(b)(7)(i) has been understood to require different
individuals to assume each of three different roles: Decision-maker,
investigator, and Title IX Coordinator. This commenter inquired as to
what the Title IX Coordinator's role would be regarding investigations
under the NPRM.
Discussion: The Department appreciates the questions commenters
raised regarding the implications of the prohibition of the single
investigator model contained in Sec. 106.45(b)(7)(i) of the final
regulations. The Department wishes to clarify that the final
regulations require the Title IX Coordinator and investigator to be
different individuals from the decision-maker, but nothing in the final
regulations requires the Title IX Coordinator to be an individual
different from the investigator. Nothing in the final regulations
prevents Title IX Coordinators from offering recommendations regarding
responsibility to the decision-maker for consideration, but the final
regulations require the ultimate determination regarding responsibility
to be reached by an individual (i.e., the decision-maker) who did not
participate in the case as an investigator or Title IX Coordinator.
The final regulations have removed proposed Sec. 106.44(b)(2) that
would have required Title IX Coordinators to file formal complaints
upon receiving multiple reports of sexual harassment against the same
respondent; however, the final regulations leave Title IX Coordinators
with discretion to decide to sign a formal complaint on the recipient's
behalf. Although signing a formal complaint initiates a grievance
process, for reasons discussed in the ``Formal Complaint'' subsection
of the ``Section 106.30 Definitions'' section of this preamble, we do
not believe that taking such an action necessarily renders a Title IX
Coordinator biased or poses a conflict of interest, and we have revised
the Sec. 106.30 definition of ``formal complaint'' to clarify that
Title IX Coordinators must comply with Sec. 106.45(b)(1)(iii) even in
situations where the Title IX Coordinator decides to sign a formal
complaint.
The final regulations revise Sec. 106.45(b)(8) to provide that
appeals on specified bases must be offered equally to both parties and
that the appeal decision-maker cannot be the same person as the
decision-maker who reached the determination regarding responsibility,
the Title IX Coordinator, or the investigator. With respect to the
roles of a hearing officer and decision-maker, the final regulations
leave recipients discretion to decide whether to have a hearing officer
(presumably to oversee or conduct a hearing) separate and apart from a
decision-maker, and the final regulations do not prevent the same
individual serving in both roles. Lastly, regarding the role of the
Title IX Coordinator, as discussed above, Sec. 106.8(a) of the final
regulations requires recipients to designate and authorize at least one
employee to serve as Title IX Coordinator and coordinate the
recipient's efforts to comply with the final regulations. Among other
things, the Title IX Coordinator is responsible for responding to
reports and complaints of sex discrimination (including reports and
formal complaints of sexual harassment), informing complainants of the
availability of supportive measures and of the process for filing a
formal complaint, offering supportive measures to complainants designed
to restore or preserve equal access to the recipient's education
program or activity, working with respondents to provide supportive
measures as appropriate, and coordinating the effective implementation
of both supportive measures (to one or both parties) and remedies (to a
complainant). As noted previously, the Title IX Coordinator is not
precluded from also serving as the investigator, under these final
regulations.
Changes: None.
Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6
Mandating a Higher Standard of Evidence
Comments: Several commenters asserted that the Department should
mandate a higher standard of evidence than the preponderance of the
evidence standard. Commenters cited cases describing the preponderance
of the evidence standard as inadequate in sexual misconduct cases given
the seriousness of allegations, the lack of other procedural safeguards
found in civil litigation, and the reputational and socioeconomic
damage resulting from a finding of sexual misconduct responsibility.
Some commenters argued that the Department should mandate, or at least
permit, recipients to use the criminal ``beyond a reasonable doubt''
standard in Title IX adjudications.\1407\ One commenter suggested that
the Department mandate the clear and convincing evidence standard but
only where the alleged sexual misconduct is a Clery Act/VAWA offense or
where the potential sanction is expulsion or suspension. One commenter
asserted that Supreme Court case law requires application of the beyond
a reasonable doubt standard in school Title IX proceedings.\1408\
---------------------------------------------------------------------------
\1407\ Commenters cited: Valerie Wilson, The Problem with Title
IX and Why it Matters, The Princeton Tory (February 19, 2015).
\1408\ Commenters cited: James M. Piccozi, Note, University
Disciplinary Process: What's Fair, What's Due, and What You Don't
Get, 96 Yale L. J. 2132, 2138 (1987) (impairment of accused's
reputation severely limits the accused student's freedom and can
make it virtually impossible to successfully transfer). Commenters
also cited: Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) for
the proposition that State action results where a private party
conducts activities exclusively and traditionally reserved to the
State, such as adjudication of sexual misconduct.
---------------------------------------------------------------------------
Commenters asserted that the clear and convincing evidence standard
would enhance the overall accuracy of the system by reducing false
positives as compared to the preponderance of the evidence standard.
One commenter argued that requiring the clear and convincing evidence
standard is essential to protect academic freedom and free speech
because it would be unjust to have a mere 50 percent threshold to
punish professors for ``improper'' or controversial speech in their
classrooms. One commenter asserted that it is especially important to
raise the standard of evidence because
[[Page 30373]]
in the current #MeToo environment women are automatically believed and
men are assumed guilty; this commenter argued that sexual misconduct
cases often boil down to credibility and such allegations are virtually
impossible to disprove.
Discussion: The Department acknowledges the suggestions offered by
commenters to mandate a higher standard of evidence than the
preponderance of the evidence standard, such as the clear and
convincing evidence standard, or the beyond a reasonable doubt standard
used in criminal proceedings. In recognition that sexual misconduct
cases involve high stakes and potentially life-altering consequences
for both parties, and such cases often involve competing, plausible
narratives about the truth of allegations, the Department authorizes
recipients, in Sec. 106.45(b)(1)(vii) of the final regulations, to
select either the preponderance of the evidence standard or the clear
and convincing evidence standard to reach determinations regarding
responsibility.\1409\ Because Title IX proceedings differ in purpose
and consequence from criminal proceedings, the Department does not
believe the criminal law standard of ``beyond a reasonable doubt'' is
appropriate in a noncriminal setting like a Title IX grievance process
for various reasons.\1410\ Recipients are not courts and do not have
the power to impose a criminal punishment such as imprisoning a
respondent. Recipients bear the burden of proof under Sec.
106.45(b)(5)(i), but they do not have subpoena power. These final
regulations also provide privacy protections for complainants and
respondents which prohibits the recipient from accessing, considering,
disclosing, or otherwise using a party's treatment records without the
party's voluntary, written consent under Sec. 106.45(b)(5)(i), even if
these treatment records are relevant to the allegations in a formal
complaint. The ``beyond a reasonable doubt'' standard also is rarely
used in any civil proceeding.\1411\ We therefore decline to permit a
recipient to select that standard of evidence, and instead permit a
recipient to select either of two standards of evidence, each of which
is used in civil matters.\1412\ The Department shares commenters'
concerns for protecting academic freedom and free speech, and Sec.
106.6(d)(1) emphasizes that nothing in the final regulations requires
restriction of rights otherwise protected by the First Amendment. To
further reinforce First Amendment rights, Sec. 106.44(a) of the final
regulations would explicitly prohibit the Department from deeming
recipients' restriction of rights protected under the First Amendment
to be evidence that the recipient was not deliberately indifferent, and
the conduct constituting actionable harassment under Sec. 106.30 must
be either serious misconduct constituting quid pro quo harassment or
Clery Act/VAWA sex offenses, or meet the Davis standard of being
severe, pervasive, and objectively offensive denying a person equal
educational access.\1413\ When a formal complaint alleges conduct
constituting ``sexual harassment'' as defined in Sec. 106.30, the
Department has concluded that the robust procedural protections granted
to both parties in Sec. 106.45 mean that the preponderance of the
evidence standard, or the clear and convincing evidence standard, may
be used to reach consistently fair, reliable outcomes. Contrary to the
claims made by one commenter, the Supreme Court has never required
application of the criminal ``beyond a reasonable doubt'' standard in
Title IX proceedings, and the Department is not aware of a Federal
appellate court decision requiring adoption of the criminal standard of
evidence in Title IX proceedings. The Department believes that
requiring such a ``beyond a reasonable doubt'' standard of evidence in
a noncriminal Title IX proceeding is unnecessary to meet due process of
law and fundamental fairness requirements, or increase accuracy of
outcomes, in Title IX grievance processes.
---------------------------------------------------------------------------
\1409\ A preponderance of the evidence standard of evidence is
understood to mean concluding that a fact is more likely than not to
be true. E.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (a
preponderance of the evidence standard ``requires the trier of fact
to believe that the existence of a fact is more probable than its
nonexistence'') (internal quotation marks and citation omitted). A
clear and convincing evidence standard of evidence is understood to
mean concluding that a fact is highly probable to be true. E.g.,
Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004) (a
clear and convincing evidence standard requires ``sufficient
evidence to produce in the ultimate factfinder an abiding conviction
that the truth of its factual contentions are [sic] highly
probable.'') (internal quotation marks and citation omitted).
\1410\ See, e.g., 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).
\1411\ Id.
\1412\ E.g., Addington v. Tex., 441 U.S. 418, 424 (1979)
(holding that the clear and convincing evidence standard was
required in civil commitment proceedings) (noting that clear and
convincing evidence is an ``intermediate standard'' between
preponderance of the evidence and the criminal beyond a reasonable
doubt standard and that the clear and convincing evidence standard
``usually employs some combination of the words `clear,' `cogent,'
`unequivocal,' and `convincing' '' and while less commonly used than
the preponderance of the evidence standard, the clear and convincing
evidence standard is ``no stranger to the civil law'' and is
sometimes used in civil cases ``involving allegations of fraud or
some other quasi-criminal wrongdoing by the defendant'' where ``the
interests at stake are deemed to be more substantial than mere loss
of money'' justifying reduction of ``the risk to the defendant of
having his [or her] reputation tarnished erroneously.'') (internal
quotation marks and citations omitted).
\1413\ For discussion of the intersection between the Sec.
106.30 definition of sexual harassment, and the First Amendment, see
the ``Sexual Harassment'' subsection of the ``Section 106.30
Definitions'' section of this preamble.
---------------------------------------------------------------------------
Changes: The final regulations revise Sec. 106.45(b)(7)(i) to
refer to the revised requirement in Sec. 106.45(b)(1)(vii), such that
the a recipient must select between the preponderance of the evidence
standard and clear and convincing evidence standard, and apply that
selected standard consistently to all formal complaints alleging Title
IX sexual harassment regardless of whether the respondent is a student
or an employee. We also revise Sec. 106.44(a) of the final regulations
to explicitly prohibit the Department from deeming recipients'
restriction of rights protected under the First Amendment to be
evidence that the recipient was not deliberately indifferent.
Supporting Sec. 106.45(b)(7)(i)
Comments: Some commenters expressed support for the NPRM's approach
to the standard of evidence. Commenters asserted that many collective
bargaining agreements (CBAs) applicable to school employees mandate the
clear and convincing evidence standard and argued that students deserve
the same rights and protections since students are the ones paying
tuition. One commenter cited a poll about public perceptions of higher
education that found 71 percent of people responding to the poll
believed, ``[s]tudents accused of sexual assault on college campuses
should be punished only if there is clear and convincing evidence that
they are guilty of a crime.'' \1414\
---------------------------------------------------------------------------
\1414\ Commenter cited: Bucknell Institute for Public Policy,
Perceptions of Higher Education Survey--Topline Results (2017).
---------------------------------------------------------------------------
Discussion: The Department appreciates the support from commenters
regarding the proposed rules' approach to the standard of evidence. For
reasons discussed above, the final regulations at Sec.
106.45(b)(1)(vii) and Sec. 106.45(b)(7)(i) continue to permit
recipients to select between the preponderance of the evidence
standard, or the clear and convincing evidence standard. We acknowledge
the poll cited by one
[[Page 30374]]
commenter finding that the majority of people responding to the poll
supported application of the clear and convincing evidence standard to
address allegations of sexual assault in the postsecondary context.
While the Department does not reach legal or policy decisions on the
basis of public polls, we believe that in light of the strong
procedural rights granted to both parties under the Sec. 106.45
grievance process, either the preponderance of the evidence standard or
the clear and convincing evidence standard may be applied to reach
fair, accurate determinations regarding responsibility in Title IX
grievance processes, and recipients should be permitted to select
either standard.
We acknowledge that many employee CBAs mandate the clear and
convincing evidence standard. The Department believes that giving
recipients the choice between the preponderance of the evidence
standard and the clear and convincing evidence standard, along with the
requirement contained in Sec. 106.45(b)(1)(vii) that the same standard
of evidence must apply for complaints against students as for
complaints against employees and faculty, helps to ensure consistency
in recipients' handling of Title IX proceedings. To better ensure that
recipients have a true choice between the two standards of evidence, we
have removed the NPRM's language from Sec. 106.45(b)(7)(i) that would
have allowed selection of the preponderance of the evidence standard
only if the recipient also used that standard for non-sexual harassment
misconduct that carried similar potential sanctions. The grievance
process, including the standard of evidence the recipient will apply,
should not vary based on the identity or status of the respondent
(i.e., student or employee). However, each recipient is allowed to
select one of the two standards of evidence (both of which are used in
a variety of civil proceedings) to decide what degree of confidence the
recipient's decision-makers must have in the factual correctness of
determinations regarding responsibility in Title IX grievance
processes.
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if a recipient used that standard for non-sexual misconduct that
has the same maximum disciplinary sanction.
One-Sided Condition on Choice of Evidentiary Standard
Comments: Commenters questioned the NPRM's requirement that if the
preponderance of the evidence standard is used in Title IX cases then
it must be used in non-Title IX cases with the same maximum punishment.
Commenters suggested this would undermine recipient flexibility. Some
commenters asserted that the NPRM presented a false choice of an
evidentiary standard because the proposed rules imposed a one-way
ratchet where schools may use the clear and convincing evidence
standard in sexual assault cases and a lower standard in other cases,
but not vice versa, thereby disadvantaging complainants in sexual
harassment situations but not in other situations. Some commenters
asserted that the Department lacks authority under Title IX to impose
requirements on non-Title IX related disciplinary proceedings.
One commenter argued that the Department should not interfere with
recipient autonomy in determining the appropriate standard of evidence;
this commenter suggested that the Department: (1) Limit the
preponderance of the evidence standard to recipients who used it before
the Department advised them to; (2) limit the preponderance of the
evidence standard for sexual misconduct cases to recipients who had the
preponderance of the evidence standard for non-sexual cases before the
NPRM; or (3) mandate all recipients use the clear and convincing
evidence standard, but allow recipients to adopt the preponderance of
the evidence standard if done by internal process initiated at least
one year after the clear and convincing evidence standard takes effect.
One commenter asserted the NPRM's approach to standard of evidence
is a heavy-handed Federal mandate to use the clear and convincing
evidence standard, which is inconsistent with the current
Administration's deregulatory agenda. This commenter asserted that the
Department should not usurp the authority of school boards or
micromanage recipients.
Discussion: The Department is persuaded by the concerns raised by
commenters that the NPRM's prohibition on recipients using the
preponderance of the evidence standard unless they also used that
standard for non-sexual misconduct that carries the same maximum
punishment constituted a one-way restriction that appeared to many
commenters to leave a recipient without a genuine choice between the
two standards of evidence. The Department is also persuaded by
commenters' objections that the NPRM approach may have had the
unintended consequence of pressuring recipients to choose a standard of
evidence for non-Title IX misconduct situations, potentially exceeding
the Department's authority to effectuate the purpose of Title IX. For
these reasons, the Department has simplified its approach to the
standard of evidence contained in Sec. 106.45(b)(1)(vii) and
referenced in Sec. 106.45(b)(7)(i), such that recipients may select
the preponderance of the evidence standard or the clear and convincing
evidence standard, without restricting that selection based on what
standard of evidence a recipient uses in non-Title IX proceedings. The
Department believes this revised approach better ensures that the
Department is not inspecting how recipients handle non-Title IX
misconduct proceedings.
We acknowledge the alternative approaches to the standard of
evidence raised by one commenter that would limit the application of
the preponderance of the evidence standard. However, the Department
believes that recipients are in the best position to select the
standard of evidence that suits their unique values and the needs of
their educational community and the Department thus declines to impose
restrictions or requirements upon recipients who select the
preponderance of the evidence standard. Because the final regulations
grant recipients the unrestricted right to choose between the
preponderance of the evidence standard and the clear and convincing
evidence standard, we disagree that the final regulations reflect a
heavy-handed Federal mandate inconsistent with the current
Administration's deregulatory agenda.
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction.
[[Page 30375]]
Same Evidentiary Standard in Student and Faculty Cases
Comments: Several commenters expressed support for the NPRM's
requirement that the same standard of evidence be used in student and
faculty cases. Commenters stated that this is important for fairness;
the Department should not permit recipients to disfavor certain groups.
A few commenters raised the point that, unlike students, employees and
faculty often have superior leverage as a group when negotiating terms
with recipients. Commenters stated that the NPRM's approach would level
this playing field. One commenter contended that setting the same
standard for both students and employees will enhance predictability
and consistency. Another commenter asserted that promoting a uniform
set of evidentiary standards would reduce recipients' costs to
administer their Title IX disciplinary programs and train personnel.
Some commenters believed that the Department was correctly
encouraging schools to apply the clear and convincing evidence standard
in Title IX cases. They stated that the clear and convincing evidence
standard is appropriate given the long-lasting and serious consequences
of being deemed responsible for sexual misconduct. Commenters argued
that faculty may lose lifelong employment and suffer permanent
reputational damage, and the preponderance of the evidence standard is
insufficient to protect academic freedom and tenure. One commenter
argued that just because the preponderance of the evidence standard is
used in civil litigation does not mean it is appropriate for Title IX
proceedings; the two systems are fundamentally distinct because the
latter does not have procedural protections such as civil access to
counsel, discovery, cross-examination, presumption of innocence,
juries, or impartiality of decision-makers that may otherwise render
the proceeding fair despite a lower evidentiary standard. The commenter
asserted that the clear and convincing evidence standard may also
mitigate the impact of racial bias that disproportionately affects male
students and faculty in sexual harassment cases.
Other commenters opposed the NPRM's requirement that the same
standard of evidence apply in student and faculty cases. Commenters
emphasized the practical difficulty of recipients changing applicable
standards for employee cases, given the reality that many faculty
collective bargaining agreements (CBAs) mandate the clear and
convincing evidence standard \1415\ and that many postsecondary
institutions choose to follow American Association of University
Professors (AAUP) standards that include a clear and convincing
evidence standard for faculty misconduct, even if the recipient's CBA
does not mandate that standard.\1416\ Commenters asserted that some
State laws require recipients to use the clear and convincing evidence
standard, especially for tenured faculty discipline cases, which may
negate the flexibility that the Department was trying to provide
recipients regarding a choice of standard of evidence. Commenters
argued that recipients subject to such CBAs or State laws do not have a
neutral choice because these recipients may be required to use a clear
and convincing evidence standard for employees and the NPRM requires
such recipients to also use that standard for students even if
recipients would rather use different standards for students than
employees. Other commenters stated that some State laws require
postsecondary institution recipients to apply a preponderance of the
evidence standard to student sexual misconduct disciplinary proceedings
yet the proposed regulations may leave such recipients with a potential
conflict between continuing to follow their State law by using the
preponderance of the evidence standard (in student cases) but violating
these final regulations (if the recipient is also bound under a CBA to
apply a clear and convincing evidence standard to faculty misconduct
and cannot raise the standard of evidence used in student cases without
violating State law).
---------------------------------------------------------------------------
\1415\ Commenters cited: Vill. of Posen v. Ill. Fraternal Order
of Police Labor Council, 2014 Ill. App. 133329 (Ill. Ct. App. 2014)
(in cases involving criminal conduct or stigmatizing behavior, many
arbitrators apply higher burden of proof, typically the clear and
convincing evidence standard) (quoting American Bar Association
Section of Labor and Employment Law, Elkouri & Elkouri: How
Arbitration Works 15-25 (Kenneth May et al. eds., 7th ed. 2012));
Nick Gier, An Update on Unions in Higher Education, Idaho State
Journal (Sept. 2, 2018).
\1416\ Commenters cited: Judith Areen, Government as Educator: A
New Understanding of First Amendment Protection of Academic Freedom
and Governance, 97 Georgetown L. J. 946 (2009).
---------------------------------------------------------------------------
One commenter stated that at the commenter's university, clear and
convincing evidence is required to dismiss a faculty member while a
preponderance of the evidence is required to punish a student, even for
similar misconduct, which ``translates to the school being less
inclined to fire a faculty member over an allegation than to punish a
student over an allegation.'' This commenter argued that the proposed
rules would force schools in that situation to make a choice: Either
lower the standard of evidence required to dismiss a faculty member, or
raise the standard of evidence for all claims to the standard used for
dismissing a faculty member, which would mean either making it easier
to prove accusations against a faculty member or making it harder to
prove any allegation (against any respondent). The commenter believed
that the proposed rules should not force schools to make a choice
between making it easier to fire faculty or making it harder to believe
sexual assault victims.
One commenter cited studies of faculty sexual harassment cases that
showed professors usually have multiple victims, mostly students, and
that faculty harassers who experience sanctions are less likely to
repeat serious harassment.\1417\ This commenter argued that if the
proposed rules' approach leads universities to comply by applying the
clear and convincing evidence standard across the board for student and
faculty sexual misconduct matters, then in effect universities would be
forced by Federal regulatory requirements to ``single out'' for
unfavorable treatment their faculty and graduate students who are
investigated for research misconduct because Federal regulations
require research misconduct linked to federally funded research grants
to be shown under a preponderance of the evidence standard, while
sexual misconduct would be investigated under a clear and convincing
evidence standard. The commenter asserted that because a finding of
research misconduct carries significant public stigma (such as the
respondent's name and case summary posted on government websites and
scientific watchdog organization websites), concern for the heightened
stigma faced by respondents accused of sexual misconduct is not an
appropriate justification for the proposed rules' apparent
encouragement of the clear and convincing evidence standard.
---------------------------------------------------------------------------
\1417\ Commenters cited: Nancy Chi Cantalupo & William Kidder, A
Systematic Look at a Serial Problem: Sexual Harassment of Students
by University Faculty, 2018 Utah L. Rev. 671, 744 fig. 5B (2018);
Margaret A. Lucero et al., Sexual Harassers: Behaviors, Motives, and
Change Over Time, 55 Sex Roles 331 (2006).
---------------------------------------------------------------------------
Some commenters argued that discipline of students, and discipline
of employees, serve fundamentally different goals and applying a one-
size-fits-all approach is inappropriate. Commenters asserted that
student discipline has a mainly educational purpose, whereas employee
discipline is about when to take adverse
[[Page 30376]]
employment action. Commenters cited scholarly articles and cases to
suggest that students and employees are different constituencies with
different interests; for example, universities have obligations to
protect student safety that differ from obligations to protect employee
safety.\1418\ Commenters asserted that the student/recipient
relationship is different than the employee/recipient relationship, in
part because the student pays tuition to gain educational and
developmental services from the school and the school has an
affirmative obligation to create an educational environment conducive
to that goal. On the other hand, commenters argued, employees provide
services to the school, mainly to benefit the students, and are paid by
the school for their services, and while all employees have a right to
a workplace free from discrimination, the school has no obligation to
encourage an employee's social and personal development. Commenters
argued that Title IX is about equal educational access, not about
making sure that schools treat all classes of respondents the same way.
One commenter contended that it is unfair to hold students to the same
standard of evidence as employees because students are not parties to
the employee union's CBAs and argued that the Department should not
bind students to outcomes of negotiations in which the students could
not participate. One commenter stated that, unlike students, university
employees can lose lifetime employment, a much more serious outcome
than being forced to leave one particular university, and this
difference justifies using a higher burden of proof in faculty cases.
---------------------------------------------------------------------------
\1418\ Commenters cited, e.g., Kristen Peters, Protecting the
Millennial College Student, 16 S. Cal. Rev. of L. & Social Justice
431, 448 (2007) (schools have a qualitatively different relationship
with their employees than their students. In the modern university
context, courts ``have increasingly recognized a college's duty to
provide a safe learning environment both on and off campus.'');
Duarte v. State, 88 Cal. App. 3d 473 (Cal. 1979) (noting that
students ``in many substantial respects surrender[]the control of
[their] person[s], control of [their] own security to the
university''); Mullins v. Pine Manor Coll., 449 NE2d 331, 335-36
(Mass. 1983) (holding that ``[p]arents, students, and the general
community . . . have a reasonable expectation, fostered in part by
colleges themselves, that reasonable care will be exercised to
protect resident students from foreseeable harm.'').
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One commenter asserted that the proposed rules' requirement to use
the same standard of evidence for cases with student-respondents as
with employee-respondents stems from anti-union bias.
One commenter argued that the proposed choice given to recipients
in the NPRM could potentially expose recipients to liability for sex
discrimination under 34 CFR 106.51 (``A recipient shall not enter into
a contractual or other relationship which directly or indirectly has
the effect of subjecting employees or students to discrimination . .
.'') (emphasis added). This commenter argued that recipients who
currently use the preponderance of the evidence standard in sexual
harassment cases involving student-respondents, may be forced by the
NPRM to raise the standard of evidence to the clear and convincing
evidence standard in order to comply with recipients' CBAs, yet that
reason for raising the standard of evidence (and, in the commenter's
view, disfavoring complainants by raising the standard of evidence) may
constitute violation of 34 CFR 106.51 because raising the standard of
evidence to match what the recipient uses in a CBA could be viewed as
having entered into a CBA (i.e., a contractual or other relationship)
that indirectly has the effect of subjecting students to discrimination
(i.e., by ``disfavoring'' complainants alleging sexual harassment).
One commenter contended that the inherent power imbalance between
faculty and students means that faculty may be viewed as more credible
than students, and thus the applicable standard of evidence should not
necessarily be identical.
Discussion: The Department appreciates commenters' support for the
approach to recipients' selection of a standard of evidence, and agrees
that offering a choice between two reasonable standards provides
consistency across cases, within each recipient's educational
community, regardless of whether the respondent is an employee or a
student, while providing recipients flexibility to select the standard
that best meets the recipient's unique needs and reflects the
recipient's values. The Department disputes commenters' assertion that
the Department is encouraging the selection of the clear and convincing
evidence standard. As shown by the fact the final regulations respond
to commenters' concerns by removing the NPRM's restriction on the use
of the preponderance of the evidence standard, the Department's
intention is to permit recipients to choose between two standards of
evidence, either of which can be applied to Title IX grievance
processes to produce fair and reliable outcomes.
The Department acknowledges the concerns raised by some commenters
regarding the challenges that may arise from implementing the
requirement contained in Sec. 106.45(b)(1)(vii) and Sec.
106.45(b)(7)(i) that the same standard of evidence be used for
complaints against students as for complaints against employees and
faculty. We recognize the reality that some employee CBAs or State laws
mandate application of the clear and convincing evidence standard for
employee or faculty misconduct, that some recipients use a lower
standard of evidence in cases involving student-respondents than in
cases involving employee-respondents, and that it may be challenging
for such recipients to decide whether to raise the standard of evidence
(for student cases) or lower the standard of evidence (for employee
cases) so that all formal complaints of sexual harassment use the same
standard of evidence as required under the final regulations. The
Department believes that recipients should carry the same burden of
proof,\1419\ weighing relevant evidence against the same standard of
evidence, with respect to any complainant's allegations of Title IX
sexual harassment. The Department believes that complainants in a
recipient's educational community should face the same process,
including the same standard of evidence, in a Title IX grievance
process regardless of whether the respondent who allegedly sexually
harassed the complainant is a student, employee, or faculty member. The
Department believes that either the preponderance of the evidence
standard, or the clear and convincing evidence standard, may be applied
to allegations of sexual harassment to reach fair, reliable outcomes,
and thus the Department permits recipients to select either of those
standards of evidence. As shown by the fact that commenters confirmed
that many recipients currently use the clear and convincing evidence
standard of evidence in employee-respondent sexual misconduct cases
while using the preponderance of the evidence standard of evidence
standard in student-respondent cases, valid reasons exist as to why a
recipient might believe that either one of those standards of evidence
reflects the appropriate level of confidence that decision-makers
should have in the factual correctness of determinations regarding
responsibility in sexual misconduct cases. The final regulations
require recipients to give complainants the predictability of knowing
that the standard of evidence that applies to a formal complaint of
sexual harassment in a particular
[[Page 30377]]
recipient's grievance process will not vary depending on whether the
complainant was sexually harassed by a fellow student, or by a school
employee.
---------------------------------------------------------------------------
\1419\ Under the final regulations, Sec. 106.45(b)(5)(i), the
burden of proof rests on the recipient, not on the parties.
---------------------------------------------------------------------------
The Department acknowledges that employees and faculty members may
have greater bargaining power and leverage than students in extracting
guarantees of protection under a recipient's grievance procedures, and
that some recipients apply a clear and convincing evidence standard for
complaints of employee misconduct through CBAs or due to choosing to
follow AAUP guidelines. However, the Department does not believe that
is necessary or reasonable to draw distinctions among complainants
alleging Title IX sexual harassment based on the status of the
respondent as a ``student'' versus an ``employee.'' Furthermore, a
growing trend within postsecondary institutions is for graduate
students to unionize, and such a trend blurs the lines between
categories of students and employees, with respect to collective
bargaining power.\1420\
---------------------------------------------------------------------------
\1420\ E.g., Leslie Crudele, Graduate Student Employees or
Employee Graduate Students? The National Labor Relations Board and
the Unionization of Graduate Student Workers in Postsecondary
Education, 10 William & Mary Bus. L. Rev. 739, 741-42 (2019) (noting
that as college enrollment has increased, so has the number of
teaching staff, and that as of 2013 the Bureau of Labor Statistics
found there were approximately 1.13 million graduate teaching
assistants employed at postsecondary institutions); id. at 780
(after detailing the history of unionization of graduate students at
public and private colleges and universities, concluding that the
National Labor Relations Board has most recently laid groundwork for
a continuing trend toward graduate student unionization).
---------------------------------------------------------------------------
Collective bargaining through a union may, as commenters asserted,
give employees greater ``bargaining power'' than students have; on the
other hand, student activism often succeeds in ``bargaining'' for
university action on a variety of matters that affect students.
Regardless of the relative strength of ``bargaining power'' of
employees and students, the Department believes that a recipient must
implement a fair grievance process for all complainants that does not
use a different standard of evidence based on whether the complainant
alleges sexual harassment against an employee, or against a student.
Complainants (especially students) who allege sexual harassment against
an employee already face the possibility that the respondent, as an
employee, may be in a position of actual or perceived authority over
the complainant, and the Department does not wish to encourage
recipients to exacerbate that power differential by treating some
complainants (i.e., those who allege sexual harassment against a
recipient's employee) differently from other complainants (i.e., those
who allege sexual harassment against a recipient's student) by
requiring the former group of complainants to navigate a grievance
process that will apply a higher standard of evidence than complainants
in the latter group of complainants.\1421\ Complainants should know
that their school, college, or university has selected a standard of
evidence (representing the ``degree of confidence''\1422\ that a
recipient requires a decision-maker to have in the factual accuracy of
the determination regarding responsibility) that will apply regardless
of the identity, status, or position of authority of the respondent.
---------------------------------------------------------------------------
\1421\ The standard of evidence used for a class of claims
reflects a societal judgment about the level of confidence a
decision-maker should have before reaching a conclusion in the case.
E.g., In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,
concurring) (the purpose of a standard of proof is ``to instruct the
factfinder concerning the degree of confidence our society thinks he
should have in the correctness of factual conclusions for a
particular type of adjudication.''). The Department believes that a
recipient's selection of a standard of evidence appropriate for
resolving sexual harassment formal complaints should reflect the
recipient's decision about the level of confidence the recipient
believes a decision-maker should have in reaching a conclusion, that
all complainants who file formal complaints of sexual harassment
with a recipient should have the benefit of understanding the
recipient's decision on that issue, and that different ``degrees of
confidence'' should not be applied based on a respondent's status as
a student or employee because whether the respondent is a student or
employee does not necessarily alter the nature of the harm that the
alleged conduct inflicted on the complainant or lessen the
seriousness of potential consequences for the respondent.
\1422\ Id.
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The Department does not view the potential consequences of being
found responsible for sexual harassment as less serious for students
than employees; while employees face potential loss of employment,
students face potential loss of educational opportunities which may
also affect a student's career opportunities. While some employees
found responsible for sexual harassment may lose all future career
opportunities and some students found responsible may transfer to other
institutions, the converse also occurs; some employees found
responsible find work elsewhere and some students found responsible
find it impossible to transfer to other institutions. The potential
consequences of being found responsible, therefore, may be just as
serious for a student as for an employee, and differences in the nature
of potential consequences does not justify using a different standard
of evidence for employee-respondent cases than for student-respondent
cases. At the same time, a complainant alleging Title IX sexual
harassment faces potential loss of equal educational access if sexual
harassment allegations are not resolved accurately, regardless of
whether the complainant has been allegedly sexually harassed by a
student or by an employee. For respondents (whether students or
employees) and for complainants (whether students or employees), it is
important for a Title IX grievance process to reach a reliable
outcome.\1423\
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\1423\ For an example of divergent views about the appropriate
standard of evidence within a university's faculty members, raising
arguments for and against retaining the clear and convincing
evidence standard for employees, see, e.g., Matt Butler, Standard of
proof in sexual assault cases debated by professors, The Review
(Nov. 10, 2014) (University of Delaware student newspaper article
reporting on a faculty debate about whether the university should
lower the standard of evidence used in faculty sexual misconduct
cases from the clear and convincing evidence standard to the
preponderance of the evidence standard, in light of OCR's insistence
that universities must use the preponderance of the evidence
standard, reporting that ``some faculty supported the lower burden
of proof as a means of creating--in reality and perception--a safer
place for students'' but also quoting Kathy Turkel, a women and
gender studies professor, as asserting that ``the student
environment should be the most important factor'' but ``the lower
standards of proof violate due process rights of the professors''
and a ``higher standard of proof'' would ``outweigh the negatives,
and it would actually help both the accuser and the accused in cases
of sexual assault'' because ``it is due process that protects both
complainants and perpetrators in these cases'').
---------------------------------------------------------------------------
The Department agrees that recipients have a different relationship
with the recipient's students than with the recipient's employees; the
Department's approach to the standard of evidence ensures that a
recipient does not adjudicate a student-complainant's formal complaint
differently based on whether the student-complainant was allegedly
sexually harassed by a student, or by an employee. Because the final
regulations do not require particular disciplinary sanctions, the final
regulations do not preclude a recipient from imposing student
discipline as part of an ``educational purpose'' that may differ from
the purpose for which a recipient imposes employee discipline. The
Department's approach to the standard of evidence is not based on
concern that a recipient must treat all classes of respondents the same
way, but is based on the Department's concern that all complainants
within a recipient's education program or activity are treated the same
way, including facing the same standard of evidence when a
complainant's sexual harassment allegations are resolved.
Permitting recipients to select between the two standards of
evidence allows recipients who face conflicting
[[Page 30378]]
requirements imposed by contracts or laws outside these final
regulations the ability to resolve such conflict in whichever way a
recipient deems appropriate.\1424\ Not all recipients are subject to
CBAs that require a different standard of evidence for employee
discipline than the recipient uses for student discipline, and not all
recipients are subject to State laws that mandate the standard of
evidence to be used in student disciplinary cases; such recipients may
select a standard of evidence in compliance with these final
regulations without the external factors of CBA or State law
requirements. For recipients who have CBAs requiring a clear and
convincing evidence standard in employee cases but no State law
directive requiring a different standard of evidence in student cases,
recipients may comply with these final regulations by using the clear
and convincing evidence standard in student cases, or by renegotiating
their CBAs to use the preponderance of the evidence standard for
employee cases.
---------------------------------------------------------------------------
\1424\ The challenge with potential conflict between Federal
Title IX expectations regarding a standard of evidence, and CBAs
that require a different (usually higher) standard of evidence, is a
challenge that has faced recipients since the Department first took
a position with respect to an appropriate standard of evidence. In
the withdrawn 2011 Dear Colleague Letter the Department insisted
that only the preponderance of the evidence standard was appropriate
in Title IX sexual harassment cases and made no exception for cases
against faculty. The Department believes that the approach in these
final regulations may help recipients address the challenge that
some recipients face in reconciling CBAs with Title IX obligations,
by allowing recipients to select one of two reasonable options
regarding a standard of evidence for Title IX purposes. See Lance
Toron Houston, Title IX Sexual Assault Investigations in Public
Institutions of Higher Education: Constitutional Due Process
Implications of the Evidentiary Standard Set Forth in the Department
of Education's 2011 Dear Colleague Letter, 34 Hofstra Labor &
Employment L. J. 321, 322-23 (2017) (``This issue represents the
evolution and eventual collision of years of legal jurisprudence
involving collective bargaining rights from the origin of public
employee law and the administratively relaxed evidentiary standards
at play in Title IX sexual assault investigations in public higher
education. In a nutshell, when collectively bargained labor
agreements on American public college campuses calls for the
heightened `clear and convincing' evidentiary standard in a sexual
assault investigation of a unionized employee, but federally
mandated Title IX investigations as required by the 2011 Dear
Colleague Letter only require the much lower threshold
`preponderance of the evidence' standard to discipline the accused
public employee, which prevails?'').
---------------------------------------------------------------------------
For recipients who do have CBAs requiring a clear and convincing
evidence standard (in employee cases) and State laws requiring a
preponderance of the evidence standard (in student cases), such
recipients may find it appropriate to comply with these final
regulations by renegotiating their CBAs rather than violate State law.
We acknowledge commenters' point that renegotiating a CBA is often a
time-consuming process; however, a recipient's contractual and
employment arrangements must comply with Federal laws,\1425\ and
recipients of Federal financial assistance understand that a condition
placed upon receipt of Federal funds is operation of education programs
or activities free from sex discrimination under Title IX, including
compliance with regulations implementing Title IX. Some recipients
cooperatively worked with their employee unions and renegotiated their
CBAs in response to the Department's withdrawn 2011 Dear Colleague
Letter so that the recipient would use the preponderance of the
evidence standard with respect to employee cases, and student
cases.\1426\ These final regulations do not require recipients who have
already modified their policies and procedures in that manner to make
further changes in that regard, because under these final regulations a
recipient may select the preponderance of the evidence standard.
---------------------------------------------------------------------------
\1425\ E.g., a typical clause included in a college's faculty
CBA states: ``This agreement and its component provisions are
subordinate to any present or future Federal or New York laws and
regulations.'' Agreement (Faculty) Between Onondaga Community
College And The Onondaga Community College Federation Of Teachers
And Administrators AFT, Local 1845 September 1, 2014-August 31,
2019.
\1426\ Lance Toron Houston, Title IX Sexual Assault
Investigations in Public Institutions of Higher Education:
Constitutional Due Process Implications of the Evidentiary Standard
Set Forth in the Department of Education's 2011 Dear Colleague
Letter, 34 Hofstra Labor & Employment L. J. 321, 351 (2017) (stating
that ``some schools have taken the bold initiative to preemptively
lower the standard of proof in cooperation with university labor
unions in order to avoid litigation and potential DOE [Department of
Education] Title IX investigations'' and citing a University of
Delaware CBA from 2015, and a California State University system CBA
from 2014, as examples).
---------------------------------------------------------------------------
These final regulations are focused on the appropriate standard of
evidence for use in resolving allegations of Title IX sexual
harassment, and not on the appropriate standard of evidence for use in
cases of other types of misconduct by students, or employees. This is
emphasized by our revision to the final regulations removing the NPRM's
approach that tied the preponderance of the evidence standard to the
standard of evidence a recipient uses in non-sexual harassment
misconduct cases. Whether or not a recipient is required to use a
certain standard of evidence under Federal regulations governing non-
sexual misconduct violations (for instance, research misconduct by
faculty or graduate students), the Department's concern in these final
regulations is ensuring that a recipient uses a single, selected
standard of evidence for Title IX sexual harassment cases so that
complainants alleging sexual harassment face a predictable grievance
process regardless of whether the complainant has alleged sexual
harassment by a student, employee, or faculty member.
Contrary to commenters' assertions otherwise, the Department does
not through these final regulations promote or encourage the clear and
convincing evidence standard (or the preponderance of the evidence
standard) and while we acknowledge that reputational stigma and
potential life-altering consequences facing respondents accused of
sexual misconduct may be reasons why a recipient might select a clear
and convincing evidence standard, we do not contend that reputational
stigma or life-altering consequences are absent in other types of
misconduct allegations, such as research misconduct by graduate
students or faculty.\1427\
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\1427\ We disagree that using a clear and convincing evidence
standard for formal complaints of sexual harassment, while using a
preponderance of the evidence standard for allegations of research
misconduct, necessarily places respondents accused of the latter
misconduct in a disfavored position. The elements of research
misconduct differ from the elements of sexual harassment (as defined
in Sec. 106.30) in ways that may justify using different standards
of evidence (as explained above, a standard of evidence represents
the degree of confidence the decision-maker must have in having
reached a factually correct conclusion). For instance, ``research
misconduct'' requires the misconduct to be committed intentionally,
knowingly, or recklessly, while the Sec. 106.30 definition of
sexual harassment does not require an element of intentionality.
E.g., Gary S. Marx, An Overview of The Research Misconduct Process
and an Analysis of the Appropriate Burden of Proof, 42 Journal of
Coll. & Univ. L. 311, 317 (2016) (``Under the regulations adopted by
HHS and by NSF, the following evidence is required to establish
research misconduct: (a) There must be a significant departure from
accepted practices of the relevant research community, (b) the
misconduct must be committed intentionally, knowingly, or
recklessly; and (c) the allegation must be proven by a preponderance
of the evidence.'').
---------------------------------------------------------------------------
The Department does not believe this approach to a recipient
selecting the standard of evidence for use in all Title IX sexual
harassment cases harms unions or reflects anti-union bias. If a
recipient decides to renegotiate CBA terms in order to comply with
Title IX obligations, that result is for the benefit of all students
and employees (including complainants and respondents) whose Title IX
rights will be more predictable and transparent, reflecting the
recipient's judgment as to what level of confidence decision-makers
should have in the accuracy of determinations regarding responsibility
in sexual harassment cases. The Department does not believe that this
[[Page 30379]]
approach subjects recipients to liability under 34 CFR 106.51, because
the Department does not assume that a recipient that changes the
standard of evidence used in student cases to be the same standard as
the recipient uses under employee CBAs makes that change for the
purpose of disadvantaging complainants who allege sexual harassment;
the Department believes that a recipient that makes that decision does
so because the recipient has determined that the selected standard of
evidence is the appropriate standard for resolving sexual harassment
allegations. As discussed throughout this ``Section 106.45(b)(7)(i)
Standard of Evidence and Directed Question 6'' subsection, commenters
noted a variety of reasons to prefer the preponderance of the evidence
standard over the clear and convincing evidence standard and vice
versa. The Department believes that either standard of evidence
(preponderance of the evidence, or clear and convincing evidence) may
be applied fairly to reach reliable outcomes. The Department also does
not believe that a recipient that selects the clear and convincing
evidence standard subjects complainants to discrimination by
``disfavoring'' complainants of sexual harassment compared to
complainants of other forms of misconduct just because the
preponderance of the evidence is used as the standard in other forms of
misconduct. As noted previously with respect to, for example, Federal
regulations that require use of the preponderance of the evidence
standard in cases of research misconduct, there may be differences in
the elements needed to prove a type of misconduct that may justify
using different standards of evidence. Further, the severity of
potential consequences of a finding of responsibility for sexual
misconduct may differ from the potential consequences of a finding of
other kinds of misconduct. Additionally, recipients sometimes use a
standard of evidence lower than the preponderance of the evidence
standard for student misconduct. Thus, unless using preponderance also
``disfavors'' complainants of sexual harassment because some misconduct
may continue to be decided under a lower standard of evidence, the
Department does not believe that a recipient's use of the clear and
convincing evidence standard subjects complainants of sexual harassment
to discrimination (by ``disfavoring'' them) just because other types of
misconduct may be decided under the preponderance of the evidence
standard.\1428\
---------------------------------------------------------------------------
\1428\ E.g., Lavinia M. Weizel, The Process That Is Due:
Preponderance of the Evidence as the Standard of Proof for
University Adjudications of Student-on-Student Sexual Assault
Complaints, 53 Boston Coll. L. Rev. 1613, 1633, 1637 (2012)
(``Substantial evidence is defined as enough relevant evidence that
a reasonable person would support the fact-finder's conclusion'' and
substantial evidence is a lower standard than the preponderance of
the evidence standard because the former requires only ``some
reasonable quantity of evidence'' while the latter requires ``facts
to be true to the degree of more likely than not''); id. at 1642-43
(noting that OCR's interpretation of Title IX and implementing
regulations was, as of 2011, that only the preponderance of the
evidence standard could be used for sexual harassment cases and ``As
a practical matter, schools may be more likely to face
constitutional challenges for moving from the higher clear and
convincing evidence standard to the lower preponderance of the
evidence standard than for moving from the lower substantial
evidence standard to the higher preponderance of the evidence
standard,'' analyzing ``the benefits of preponderance of the
evidence as compared to the lower substantial evidence standard''
focusing on ``whether the preponderance of the evidence standard is
sufficient to protect accused students' due process rights or
whether the higher standard of clear and convincing evidence is
required,'' and asserting that ``the use of the preponderance of the
evidence standard, rather than the lower substantial evidence
standard, will benefit schools, accused students, and perhaps all
students, by lending greater legitimacy and uniformity to school
disciplinary proceedings.''); see also, e.g., Miss. Code Ann. Sec.
37-9-71 (in Mississippi, ``The standard of proof in all disciplinary
proceedings shall be substantial evidence'' and students may be
suspended or expelled for ``unlawful activity'' defined in Miss.
Code Ann. Sec. 37-11-29 to include rape, sexual battery, and
fondling as well as non-sex crimes such as aggravated assault; thus,
if Mississippi follows OCR's position since the withdrawn 2011 Dear
Colleague Letter that only the preponderance of the evidence
standard should be used for sexual violence cases, and follows
Mississippi State law directing schools to apply the substantial
evidence standard for unlawful activity, Mississippi would use
preponderance of the evidence for sexual harassment complainants and
a lower standard of evidence for complainants of other types of
misconduct, and the Department does not view this as Mississippi
subjecting complainants of sexual harassment to discrimination by
``disfavoring'' them as compared to complainants of non-sexual
harassment misconduct).
---------------------------------------------------------------------------
Whether or not commenters are correct in noting that power
differentials between employees (particularly faculty) and students may
tempt recipients to treat faculty as more credible than students, the
final regulations allow recipients to select one of two standards of
evidence consistently to all formal complaints; under either standard
selected, the recipient is obligated to assess credibility based on
objective evaluation of the evidence and not due to the party's status
as a complainant or respondent,\1429\ and without bias for or against
complainants or respondents generally or for or against an individual
complainant or respondent.\1430\
---------------------------------------------------------------------------
\1429\ Section 106.45(b)(1)(ii).
\1430\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction.
Requiring the Preponderance of the Evidence Standard
Comments: Many commenters urged the Department to mandate the
preponderance of the evidence standard in Title IX proceedings.
Commenters argued that the preponderance of the evidence standard is
the only standard that treats both parties fairly, consistent with
Title IX's requirement that grievance procedures be ``equitable,'' and
that a higher standard would unfairly tilt proceedings in favor of
respondents and against complainants.\1431\ Commenters argued that
application of a heightened standard specifically in sexual misconduct
cases reflects wrongful stereotypes that survivors, mainly girls and
women, are more likely to lie than students who report other types of
misconduct.\1432\ Commenters argued that the preponderance of the
evidence standard is most appropriate because both parties have an
equal interest in continuing their education. Commenters cited Title IX
experts who support the preponderance of the evidence standard because,
for example, it treats both parties equitably, levels the playing field
between men and women, and because any higher standard than
preponderance of the evidence would unfairly benefit respondents and
discourage reporting of sexual assault by sending the message that a
respondent's future at the institution is more important than the
complainant's future
[[Page 30380]]
at the institution.\1433\ At least one commenter opined that using
anything other than the preponderance standard demonstrates caring more
about the accused than the complainant.\1434\
---------------------------------------------------------------------------
\1431\ Commenters cited: Katharine Baker et al., Title IX & the
Preponderance of the Evidence: A White Paper (July 18, 2017) (signed
by 90 law professors).
\1432\ Commenters cited, e.g., Sarah McMahon & G. Lawrence
Farmer, An Updated Measure for Assessing Subtle Rape Myths, 35
Social Work Research 2 (2011); Linda A. Fairstein, Sexual violence:
Our war against rape (William Morrow & Co. 1993); S. Zydervelt et
al., Lawyers' Strategies for Cross-Examining Rape Complainants: Have
We Moved Beyond the 1950s?, 57 British Journal of Criminology 3
(2016); Martha R. Burt, Cultural Myths and Supports for Rape, 38
Journal of Personality & Social Psychol. 2 (1980).
\1433\ Commenters cited: Edward Stoner II & John Wesley Lowery,
Navigating Past the ``Spirit of Subordination'': A Twenty-First
Century Model Student Conduct Code with a Model Hearing Script, 31
Journal of Coll. & Univ. L. 1, 49 (2004); Lavinia M. Weizel, The
Process that is Due: Preponderance of the Evidence as the Standard
of Proof for University Adjudications of Student-on-Student Sexual
Assault Complaints, 53 Boston Coll. L. Rev. 4, 1613, 1632 (2012);
National Center for Higher Education Risk Management (The NCHERM
Group), Due Process and the Sex Police (Apr. 2017) at 2, 17-18;
Elizabeth Bartholet et al., Fairness For All Students Under Title IX
5 (Aug. 21, 2017); Association of Title IX Administrators (ATIXA),
ATIXA Position Statement: Why Colleges Are in the Business of
Addressing Sexual Violence 4 (Feb. 17, 2017) (``The whole point of
Title IX is to create a level playing field for men and women in
education, and the preponderance standard does exactly that. No
other evidentiary standard is equitable.''); Student Affairs
Administrators in Higher Education (NASPA), NASPA Priorities for
Title IX: Sexual Violence Prevention & Response 1 (``Rather than
leveling the field for survivors and respondents, setting a standard
higher than preponderance of the evidence tilts proceedings to
unfairly benefit respondents.''); Association for Student Conduct
Administration (ASCA), ASCA 2014 White Paper: Student Conduct
Administration & Title IX: Gold Standard Practices for Resolution of
Allegations of Sexual Misconduct on College Campuses 2 (2014);
Association for Student Conduct Administration (ASCA), The
Preponderance of Evidence Standard: Use In Higher Education Campus
Conduct Processes (``Considering the serious potential consequences
for all parties in these cases, it is clear that preponderance is
the appropriate standard by which to reach a decision, since it is
the only standard that treats all parties equitably. To use any
other standard says to the victim/survivor, `Your word is not worth
as much to the institution as the word of accused' or, even worse,
that the institution prefers that the accused student remain a
member of the campus community over the complainant. Such messages
do not contribute to a culture that encourages victims to report
sexual assault.'').
\1434\ Commenters cited: Michelle J. Anderson, Campus Sexual
Assault Adjudication and Resistance to Reform, 125 Yale L. J. 1940,
1986 (2016).
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Commenters also asserted that the Department's longstanding
practice has been to require the preponderance of the evidence
standard, that many recipients currently use this standard,\1435\ and
that courts generally use the preponderance of the evidence standard in
civil rights litigation including for Title VI and Title VII.\1436\ At
least one commenter argued that VAWA created civil rights of action for
claims of rape and sexual assault and requires the preponderance of the
evidence standard, and thus Title IX should not permit a different
evidentiary standard to be used for conduct that also constitutes rape
and sexual assault.\1437\ One commenter invoked the canon of in pari
materia, in which similar statutes should be interpreted similarly, and
argued that because lawsuits under Title VI and Title VII cases apply
the preponderance of the evidence standard and these statutes serve the
same basic civil rights purpose as Title IX, the preponderance of the
evidence standard should also apply in Title IX proceedings.
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\1435\ Commenters cited: Letter from Association of Title IX
Administrators (ATIXA) et al. to Russlynn Ali, Assistant Sec'y for
Civil Rights, Office for Civil Rights, Dep't. of Education 2 (Feb.
7, 2012) (for the proposition that 80 percent of schools already
used the preponderance of the evidence standard before OCR insisted
on its use). Some commenters cited: Heather M. Karjane et al.,
Campus Sexual Assault: How America's Institutions of Higher
Education Respond 120, Final Report, NIJ Grant # 1999-WA-VX-0008
(Education Development Center, Inc. 2002); Angela Amar et al.,
Administrators' Perceptions of College Campus Protocols, Response,
and Student Prevention Efforts for Campus Sexual Assault, 29
Violence & Victims 579, 584-85 (2014); Jake New, Burden of Proof in
the Balance, Inside Higher Education (Dec. 16, 2016) (for the
proposition that 60-70 percent of institutions already used the
preponderance of the evidence standard prior to the withdrawn 2011
Dear Colleague Letter); Michelle J. Anderson, The Legacy of the
Prompt Complaint Requirement, Corroboration Requirement, and
Cautionary Instructions on Campus Sexual Assault, 84 Boston Univ. L.
Rev. 945, 1000 (2004) (for the proposition that most postsecondary
institutions had voluntarily adopted the preponderance of the
evidence standard for all student misconduct (not just sexual
misconduct) by the early 2000s).
\1436\ Commenters cited: Bazemore v. Friday, 478 U.S. 385, 400
(1986), citing cases under Title VII (e.g., Desert Palace, Inc. v.
Costa, 539 U.S. 90, 99 (2003)), Price Waterhouse v. Hopkins, 490
U.S. 228, 253 (1989); Tex. Dep't. of Cmty. Affairs v. Burdine,
superseded by statute, Civil Rights Act of 1991, as recognized in
Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994); Elston v.
Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993);
Ramya Sekaran, The Preponderance of the Evidence Standard and
Realizing Title IX's Promise: An Educational Environment Free from
Sexual Violence, 19 Georgetown J. of Gender & the L. 3 (2018);
Judicial Business 2014, U.S. Courts (Sept. 30, 2014) (for the
proposition that the majority of cases in U.S. legal system use the
preponderance of the evidence standard, shown by the fact that the
number of filings for criminal defendants represented less than a
third of all Federal case filings in 2014); SEC v. Posner, 16 F.3d
520, 521 (2d Cir. 1994); EEOC v. Gaddis, 733 F.2d 1373, 1378-79
(10th Cir. 1984); D. Allison Baker, Gender-Based Discrimination, 1
Georgetown J. of Gender & the L. 2 (2000) (for the proposition that
preponderance of the evidence is the standard used in civil
proceedings involving sexual harassment claims). Commenters also
cited: Steadman v. SEC, 450 U.S. 91, 95-102 (1982); Valmonte v.
Bane, 18 F.3d 992, 1003-05 (2d Cir. 1994) (for the proposition that
preponderance is used in various administrative proceedings
involving imposition of serious sanctions). Commenters also cited:
William E. Thro, No Clash of Constitutional Values: Respecting
Freedom and Equality in Public University Sexual Assault Cases, 28
Regent Univ. L. Rev. 197, 209 (2016) (for the proposition that a
higher standard should not be used for campus proceedings than what
is used in traditional court litigation); Patricia H. Davis, Higher
Education Law: Title IX Cases, 80 Tex. Bus. J. 512 (2017) (for the
proposition that preponderance is essential to hold perpetrators
accountable and promote healthy campus environments).
\1437\ Commenters cited: Amy Chmielewski, Defending the
Preponderance of the Evidence Standard in College Adjudications of
Sexual Assault, 2013 BYU Educ. & L. J. 143 (2013).
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Commenters argued that Title IX proceedings do not involve
potential denial of significant liberty interests or jail, but rather
involve determinations about whether the accused has violated school
policy. These commenters described Supreme Court cases requiring a
higher standard of evidence (such as clear and convincing evidence) in
only a narrow set of cases implicating particularly important
interests,\1438\ such as civil commitment, deportation,
denaturalization, termination of parental rights, and similar cases,
and commenters argued that school disciplinary proceedings do not
implicate uniquely important interests that would warrant a heightened
evidentiary standard.\1439\ A few commenters argued that potential
damage to future career prospects does not justify a higher standard
because the preponderance of the evidence standard applies to Federal
research misconduct cases, civil anti-fraud proceedings, and
professional discipline cases.\1440\
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\1438\ Commenters cited: Amy Chmielewski, Defending the
Preponderance of the Evidence Standard in College Adjudications of
Sexual Assault, 2013 BYU Educ. & L. J. 143, 150 (2013).
\1439\ Commenter cited: Chelsea Avent, Karasek v. Regents of the
University of California: The Victimization of Title IX, 96 Neb. L.
Rev. 772, 776 (2018).
\1440\ Commenters cited, e.g., In re Barach, 540 F.3d 82, 85
(1st Cir. 2008); Granek v. Tex. State Bd. of Med. Examiners, 172
SW3d 761, 777 (Tex. Ct. App. 2005) (for the proposition that many
State and Federal courts apply the preponderance of the evidence
standard to professional license revocation proceedings); Commenters
cited an HHS study finding that two-thirds of States use the
preponderance of the evidence standard in physician misconduct
cases: Randall R. Bovbjerg et al., State Discipline of Physicians
14-15 (2006). Commenters cited: Gary S. Marx, An Overview of the
Research Misconduct Process and an Analysis of the Appropriate
Burden of Proof, 42 Journal of Coll. & Univ. L. 311, 364 (2016).
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One commenter asserted that the clear and convincing evidence
standard is unfairly vague compared to the preponderance of the
evidence standard, and can increase ambiguity in situations where there
is already distrust of sexual assault survivors. This commenter
asserted that schools often do not have capacity to thoroughly
undertake investigations and uncover corroborative evidence, so the
preponderance of the evidence standard is the most appropriate
standard. Commenters expressed concern that economically disadvantaged
students might not have the ability to access resources immediately
after being raped or assaulted, and thus might not be able to obtain
evidence that courts deem to meet a clear and convincing evidence
standard. Another commenter expressed concern that applying a
heightened standard for sexual misconduct could
[[Page 30381]]
inadvertently set up young men to fail once they enter the corporate
world, where a zero-tolerance approach applies.
Discussion: The Department acknowledges the arguments raised by
many commenters that the Department should mandate a preponderance of
the evidence standard in Title IX proceedings for reasons including
fairness, consistency with civil litigation, and consistency with other
civil rights laws including Title VI and Title VII. As to the
sufficiency of evidence to meet a clear and convincing evidence
standard, the Department appreciates the opportunity to clarify that
neither the preponderance of the evidence standard, nor the clear and
convincing evidence standard, requires corroborating evidence.\1441\ We
recognize, as have many commenters, that sexual harassment situations
may arise under circumstances where the only available evidence is the
statement of each party involved. A recipient is obligated to
objectively evaluate all relevant evidence, including inculpatory and
exculpatory evidence.\1442\ The decision-maker can reach a
determination regarding responsibility under a preponderance of the
evidence standard, or a clear and convincing evidence standard, based
on objective evaluation of party statements, with or without evidence
that corroborates either party's statements.\1443\ As discussed
previously, a standard of evidence represents the ``degree of
confidence'' that a decision-maker must have in the conclusion reached;
\1444\ a standard of evidence does not dictate the nature of available
evidence that might lead a decision-maker to reach the designated level
of confidence.
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\1441\ Courts do not impose a requirement of corroborating
evidence with respect to meeting either the preponderance of the
evidence, or clear and convincing evidence, standard. See, e.g.,
Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr.
for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397
U.S. 358, 371-372 (1970) (Harlan, J., concurring) (``The burden of
showing something by a `preponderance of the evidence,' the most
common standard in the civil law, `simply requires the trier of fact
to believe that the existence of a fact is more probable than its
nonexistence before [he] may find in favor of the party who has the
burden to persuade the [judge] of the fact's existence.' '')); cf.,
Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004)
(``Clear and convincing evidence requires greater proof than
preponderance of the evidence. To meet this higher standard, a party
must present sufficient evidence to produce `in the ultimate
factfinder an abiding conviction that the truth of its factual
contentions are [sic] highly probable.'') (quoting Colorado v. New
Mexico, 467 U.S. 310, 316 (1984)).
\1442\ Section 106.45(b)(1)(ii).
\1443\ Gary S. Marx, An Overview of The Research Misconduct
Process and an Analysis of the Appropriate Burden of Proof, 42
Journal of Coll. & Univ. L. 311, 347 (2016) (noting that with
respect to a clear and convincing evidence standard, while ``the
proof must be of a heavier weight than merely the greater weight of
the credible evidence, it does not require the evidence be
unequivocal or undisputed'').
\1444\ In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,
concurring) (the purpose of a standard of proof is ``to instruct the
factfinder concerning the degree of confidence our society thinks he
should have in the correctness of factual conclusions for a
particular type of adjudication.'').
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The statutory text of Title IX does not dictate a standard of
evidence to be used by recipients in investigations of sexual
harassment. The Department's 2001 Guidance was silent on an appropriate
standard of evidence during Title IX grievance procedures,\1445\
although the withdrawn 2011 Dear Colleague Letter took the position
that using a clear and convincing evidence standard violates Title IX
because only a preponderance of the evidence standard is consistent
with resolution of civil rights claims.\1446\
---------------------------------------------------------------------------
\1445\ 2001 Guidance at 20.
\1446\ 2011 Dear Colleague Letter at 11.
---------------------------------------------------------------------------
It is true that civil litigation generally uses the preponderance
of the evidence standard (although a clear and convincing evidence
standard is applied in some civil litigation issues),\1447\ and that
Title IX grievance processes are analogous to civil litigation in some
ways. However, it is also true that Title IX grievance processes (as
prescribed under these final regulations) do not have the same set of
procedures available in civil litigation. For example, many recipients
choose not to allow active participation by counsel; there are no
comprehensive rules of evidence or rules of civil procedure in Title IX
grievance processes that allow and govern pretrial motion practice; and
Title IX grievance processes do not afford parties the same discovery
tools available under rules of civil procedure. The Department does not
wish to force schools, colleges, and universities to become de facto
civil courts by imposing all the features of civil litigation onto the
Title IX grievance process; rather, the Department has included in the
Sec. 106.45 grievance process those procedural protections the
Department has determined necessary to serve the critical interests of
creating a consistent, fair process promoting reliable outcomes. While
selecting a standard of evidence is important to ensuring a
transparent, fair, reliable process, the Department has determined that
a recipient may apply either the preponderance of the evidence
standard, or the clear and convincing evidence standard, to fairly and
accurately resolve formal complaints of sexual harassment. The
Department believes that recipients reasonably may conclude that the
preponderance of the evidence standard is more appropriate (perhaps for
the reasons advocated by commenters) or that the clear and convincing
evidence standard is more appropriate (perhaps for the reasons
advocated by other commenters). The Department believes that either
standard of evidence, in combination with the rights and protections
required under Sec. 106.45, creates a consistent, fair process under
which recipients can reach accurate determinations regarding
responsibility. Factually accurate outcomes are critical in sexual
harassment cases, where both parties face potentially life-altering
consequences from the outcome, and either standard of evidence allowed
under these final regulations reduces the risk of a factually
inaccurate outcome. ``Being labeled a sex offender by a university has
both an immediate and lasting impact on a student's life'' may affect
``educational and employment opportunities down the road''.\1448\ When
a finding of responsibility is erroneous, such consequences are unjust.
At the same time, when a respondent is found not responsible for sexual
harassment, the complainant receives no remedy restoring the
complainant's equal access to education,\1449\ with immediate and
lasting impact on the complainant's life, which may affect educational
and employment opportunities down the road. When the finding of non-
responsibility is erroneous, such consequences are unjust. A
complainant ``deserves a reliable, accurate outcome as much as'' a
respondent.\1450\
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\1447\ Cal. ex rel. Cooper v. Mitchell Bros.' Santa Ana Theater,
454 U.S. 90, 92-93 (1981) (noting that the ``purpose of a standard
of proof is to instruct the factfinder concerning the degree of
confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication'' and
``[t]hree standards of proof are generally recognized, ranging from
the preponderance of the evidence standard employed in most civil
cases, to the clear and convincing evidence standard reserved to
protect particularly important interests in a limited number of
civil cases, to the requirement that guilty be proved beyond a
reasonable doubt in a criminal prosecution.'') (internal quotation
marks and citations omitted).
\1448\ Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018).
\1449\ Nothing in these final regulations prevents a recipient
from providing supportive measures to a complainant even after a
determination of non-responsibility.
\1450\ Doe v. Univ. of Cincinnati, 872 F.3d 393, 404 (6th Cir.
2017).
---------------------------------------------------------------------------
The Department disagrees that the preponderance of the evidence
standard means that complainants and respondents are treated
``equally'' or placed ``on a level playing field.'' Where
[[Page 30382]]
the evidence in a case is ``equal'' or ``level'' or ``in equipoise,''
the preponderance of the evidence standard results in a finding that
the respondent is not responsible.\1451\
---------------------------------------------------------------------------
\1451\ See, e.g., Vern R. Walker, Preponderance, Probability,
and Warranted Factfinding, 62 Brooklyn L. Rev. 1075, 1076 (1996)
(noting that the traditional formulation of the preponderance of the
evidence standard by courts and legal scholars is that the party
with the burden of persuasion must prove that a proposition is more
probably true than false meaning a probability of truth greater than
50 percent); Neil B. Cohen, The Gatekeeping Role in Civil Litigation
and the Abdication of Legal Values in Favor of Scientific Values, 33
Seton Hall L. Rev. 943, 954-56 (2003) (noting that the preponderance
of the evidence standard applied in civil litigation results in the
plaintiff losing the case where the plaintiff's and defendant's
positions are ``in equipoise,'' i.e., where the evidence presented
makes the case ``too close to call'').
---------------------------------------------------------------------------
The Department recognizes that consistency with respect to
administrative enforcement of Title IX and other civil rights laws
(such as Title VI and Title VII) is desirable. However, these final
regulations focus on furthering Title IX's non-discrimination mandate
and address challenges unique to recipients' responses to sexual
harassment. In this regard the Department has determined that
recipients should retain flexibility to select the standard of evidence
that they believe is most appropriate, because either of the two
standards of evidence permitted under these final regulations may be
used to produce reliable outcomes. The Department does not believe this
approach to a standard of evidence under Title IX is in conflict with
statutory or regulatory requirements under Title VI or Title VII that
may apply to recipients who also have obligations under Title IX.
Similarly, while VAWA authorizes private rights of action that
(similarly to judicially implied private rights of action under Title
VI and Title IX) use a preponderance of the evidence standard in civil
litigation exercising those rights of action, these final regulations
do not impact the standard of evidence that applies in civil litigation
under any statute. For the reasons explained above the Department
believes that either the preponderance of the evidence standard, or the
clear and convincing evidence standard, is an appropriate standard in
Title IX grievance processes, which differs from civil litigation. Even
as to ways in which a Title IX grievance process is similar to civil
litigation, both standards of evidence (the preponderance of the
evidence standard and the clear and convincing evidence standard) are
used in various types of civil litigation.
As many commenters have noted, a Title IX grievance process differs
in purpose and context from criminal, civil, and administrative agency
proceedings. A Title IX grievance process serves a unique purpose
(i.e., reaching accurate factual determinations about whether sexual
harassment must be remedied by restoring a victim's equal access to
education) in a unique context (i.e., decisions must be reached by
schools, colleges, and universities whose primary function is to
educate, not to serve as courts or administrative bodies). A Title IX
grievance process is different from criminal, civil, and administrative
proceedings, yet bears similarities to each. The preponderance of the
evidence standard, and the clear and convincing evidence standard, each
are used in various civil and administrative proceedings.\1452\
Additionally, recipients have historically used either the
preponderance of the evidence standard or the clear and convincing
evidence standard for a variety of student and employee misconduct
proceedings, under a variety of rationales for choosing one or the
other.\1453\ The Department believes that a recipient could view either
standard as appropriate in the context of Title IX proceedings, and the
Department agrees that either standard may be fairly applied to reach
accurate outcomes, and thus these final regulations allow recipients to
select the preponderance of the evidence standard, or the clear and
convincing evidence standard, for use in resolving formal complaints of
sexual harassment under Sec. 106.45.\1454\ Selecting a standard of
evidence represents a statement about the ``degree of confidence'' that
a recipient believes its decision-makers should have in reaching
determinations regarding responsibility in Title IX sexual harassment
cases. We do not agree that the recipient's selection of one standard
over the other implies a belief that any party is lying or untruthful,
and regardless of the applicable standard of evidence, Title IX
personnel must avoid prejudgment of the facts at issue \1455\ and reach
determinations regarding responsibility based on objective evaluation
of the evidence without drawing credibility determinations based on a
party's status as a complainant or respondent.\1456\ We also reiterate
that regardless of the applicable standard of evidence, the burden of
proof rests on the recipient, not on either party.\1457\
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\1452\ See, e.g., Nguyen v. Wash. Dep't. of Health, 144 Wash.2d
516 (2001) (concluding that the Due Process Clause requires proof by
at least the clear and convincing evidence standard in a sexual
misconduct case in a medical disciplinary proceeding); Disciplinary
Counsel v. Bunstine, 136 Ohio St. 3d 276 (2013) (applying the clear
and convincing evidence standard in sexual harassment case involving
a lawyer); cf. In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek
v. Tex. State Bd. of Med. Examiners, 172 SW3d 761, 777 (Tex. Ct.
App. 2005) (noting that many State and Federal courts apply the
preponderance of the evidence standard to professional license
revocation proceedings).
\1453\ As many commenters noted, there exist valid reasons for
supporting the preponderance of the evidence standard, and for
supporting the clear and convincing evidence standard, with respect
to sexual misconduct allegations. Commenters, for instance, cited
this debate by citing to: Nancy Chi Cantalupo & John Villasenor, Is
a Higher Standard Needed for Campus Sexual Assault Cases?, The New
York Times (Jan. 4, 2017). The final regulations permit recipients
to select between these standards to best meet the legal, cultural,
and pedagogical needs of the recipient's community with respect to
the degree of certainty the recipient expects decision-makers to
have when reaching determinations regarding responsibility for
sexual harassment allegations.
\1454\ For reasons explained in the ``Mandating a Higher
Standard of Evidence'' subsection of this ``Section 106.45(b)(7)(i)
Standard of Evidence and Directed Question 6'' subsection of this
preamble, the Department does not permit recipients to select a
standard of evidence higher than clear and convincing evidence (such
as the criminally used ``beyond a reasonable doubt'' standard).
\1455\ Section 106.45(b)(1)(iii).
\1456\ Section 106.45(b)(1)(i).
\1457\ Section 106.45(b)(5)(i).
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We disagree that the clear and convincing evidence standard is
unfairly vague. The clear and convincing evidence standard is a widely
recognized standard of evidence used in a variety of civil and
administrative proceedings,\1458\ and
[[Page 30383]]
many recipients have historically used clear and convincing evidence as
an evidentiary standard for various types of student or employee
misconduct.\1459\
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\1458\ E.g., Addington v. Texas, 441 U.S. 418, 424 (1979)
(holding that the clear and convincing evidence standard was
required in civil commitment proceedings) (noting that clear and
convincing evidence is an ``intermediate standard'' between
preponderance of the evidence and the criminal beyond a reasonable
doubt standard and that the clear and convincing evidence standard
``usually employs some combination of the words `clear,' `cogent,'
`unequivocal,' and `convincing' '' and while less commonly used than
the preponderance of the evidence standard the clear and convincing
evidence standard is ``no stranger to the civil law'' and is
sometimes used in civil cases ``involving allegations of fraud or
some other quasi-criminal wrongdoing by the defendant'' where ``the
interests at stake are deemed to be more substantial than mere loss
of money'' justifying reduction of ``the risk to the defendant of
having his reputation tarnished erroneously.'') (internal quotation
marks and citations omitted); Sophanthavong v. Palmateer, 378 F.3d
859, 866-67 (9th Cir. 2004) (``Clear and convincing evidence
requires greater proof than preponderance of the evidence. To meet
this higher standard, a party must present sufficient evidence to
produce `in the ultimate factfinder an abiding conviction that the
truth of its factual contentions are [sic] highly probable.' '')
(quoting Colorado. v. New Mexico, 467 U.S. 310, 316 (1984))
(brackets in original); Jane B. Baron, Irresolute Testators, Clear
and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3, 45 (2016)
(discussing application of the ``clear and convincing evidence''
standard in the context of proving that a facially defective will
represented the testator's intent, and noting that ``It is common,
however, for courts to vary in their formulation and expression of a
legal standard. No evidentiary standard can define itself; all are
indeterminate to some degree. Still, the idea behind requiring clear
and convincing evidence seems intuitive enough; the factfinder need
not be absolutely certain, but highly confident, about the fact in
issue.''); Haley Hawkins, Clearly Unconvincing: How Heightened
Evidentiary Standards in Judicial Bypass Hearings Create an Undue
Burden Under Whole Woman's Health, 67 Am. Univ. L. Rev. 1911, 1923
(2018) (``The clear and convincing evidence standard of proof is the
highest evidentiary standard employed in civil proceedings, second
only to the `beyond a reasonable doubt' standard employed in
criminal proceedings. In general, standards of proof function to
`instruct the factfinder concerning the degree of confidence our
society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication.' Within the range
of standards, clear and convincing evidence is situated to `protect
particularly important individual interests in various civil cases'
that involve more than `mere loss of money.' Though the meaning of
`clear and convincing' varies by state, one can generally articulate
the standard as `persuad[ing] the [factfinder] that the proposition
is highly probable, or . . . produc[ing] in the mind of the
factfinder a firm belief or conviction that the allegations in
question are true.' '') (internal citations omitted).
\1459\ 2011 Dear Colleague Letter at 11 (noting that the clear
and convincing evidence standard was, at that time, ``currently used
by some schools'' and insisting that only the preponderance of the
evidence standard is permissible under Title IX); Matthew R.
Triplett, Sexual Assault on College Campuses: Seeking the
Appropriate Balance Between Due Process and Victim Protection, 62
Duke L. J. 487, fn. 107 (2012) (noting that ``the standard of proof
in student disciplinary hearings has historically varied wildly
across institutions'' and listing examples of several prominent
universities that lowered their standard of evidence from the clear
and convincing evidence standard, to the preponderance of the
evidence standard, after OCR issued the [now-withdrawn] 2011 Dear
Colleague Letter).
---------------------------------------------------------------------------
We disagree that a recipient who selects the clear and convincing
evidence standard for resolution of sexual harassment cases is failing
to prepare students for future careers in the corporate world. While
corporate employers may or may not choose to, or be required to, use
the clear and convincing evidence standard for sexual misconduct
proceedings involving employees, workplaces differ from educational
environments and different laws and policies govern discrimination
complaints and misconduct proceedings in each context. Whether or not
the commenter correctly characterized corporate environments as having
``zero tolerance policies,'' we note that nothing in these final
regulations precludes a recipient from adopting a zero tolerance policy
(with respect to harassment or any other misconduct); these final
regulations apply only to a recipient's obligations to respond to
sexual harassment (as defined in Sec. 106.30) of which the recipient
knows and which occurs in the recipient's education program or
activity.\1460\ As noted in Sec. 106.45(b)(3)(i), even if a recipient
must dismiss allegations of sexual harassment in a formal complaint
under these final regulations, such dismissal is only for Title IX
purposes and does not preclude action under another provision of the
recipient's code of conduct.
---------------------------------------------------------------------------
\1460\ Section 106.44(a) (requiring a recipient with actual
knowledge of sexual harassment in the recipient's education program
or activity against a person in the United States to respond
promptly in a manner that is not deliberately indifferent).
---------------------------------------------------------------------------
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction.
Improving Accuracy of Outcomes
Comments: A number of commenters asserted that the preponderance of
the evidence standard increases the overall accuracy of the system
because it is an error-minimizing standard and argued that the clear
and convincing evidence standard would increase false negative errors
to a greater extent than it reduces false positive errors, thus
reducing the accuracy of Title IX outcomes.\1461\ Other commenters
pointed to a study explaining that use of the preponderance of the
evidence standard increases false positive errors.\1462\
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\1461\ Commenters cited: Nicholas E. Khan, The Standard of Proof
in the Substantiation of Child Abuse and Neglect, 14 Journal of
Empirical Legal Studies 333, 356-57 (2017).
\1462\ Commenters cited: John Villasenor, A Probabilistic
Framework for Modelling False Title IX `convictions' under the
Preponderance of the Evidence Standard, 15 Law, Probability & Risk 4
(2016).
---------------------------------------------------------------------------
Discussion: The Department shares commenters' concerns that
increasing the overall accuracy of determinations of responsibility in
Title IX proceedings is critical and that minimizing either type of
error (i.e., false positives and false negatives) is important and
desirable. The Department does not believe that evidence is conclusive
either way regarding whether using the preponderance of the evidence
standard or the clear and convincing evidence standard as the standard
of evidence in Title IX proceedings best reduces risk of error, in part
because studies that may shed light on that question assume features
and processes in place that differ from those prescribed by the final
regulations under Sec. 106.45. The final regulations permit recipients
to select either the preponderance of the evidence standard or the
clear and convincing evidence standard for application to formal
complaints of sexual harassment in the recipient's educational
community, because in combination with the other procedural features of
the Sec. 106.45, either standard of evidence can be applied fairly to
result in accurate outcomes.
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction.
Safety Concerns
Comments: Many commenters contended that the clear and convincing
evidence standard will make campuses less safe, chill reporting, and
harm already vulnerable students.\1463\ Commenters argued that the
clear and convincing evidence standard will discourage survivors,
particularly students of color, LGBTQ students, and students with
disabilities, from reporting because this standard unjustly favors
respondents. Commenters argued that the clear and convincing evidence
standard may result in a lower number of respondents found responsible
and removed from campus, thus increasing the risk of victim re-
traumatization by encountering their perpetrator and possibly resulting
in ``constructive expulsion,'' where survivors leave school to avoid
seeing their perpetrator. Commenters argued that the clear and
convincing evidence standard may perversely incentivize perpetrators to
[[Page 30384]]
attack again because of the perception they will not be held
accountable.
---------------------------------------------------------------------------
\1463\ Commenters cited: Nancy Chi Cantalupo, For the Title IX
Civil Rights Movement: Congratulations and Cautions, 125 Yale L. J.
of Feminism 282, 290 (2016); Kathryn J. Holland & Lilia M. Cortina,
``It happens to girls all the time'': Examining sexual assault
survivors' reasons for not using campus supports, 59 Am. J. of
Community Psychol. 1-2 (2017); Shamus Khan et al., ``I Didn't Want
to Be `That Girl' '': The Social Risks of Labeling, Telling, and
Reporting Sexual Assault, 5 Sociological Sci. 432 (2018).
---------------------------------------------------------------------------
Discussion: Under the final regulations, complainants (or third
parties) may report sexual harassment triggering a recipient's
mandatory obligation to offer the complainant supportive measures and
inform the complainant about the option of filing a formal complaint;
complainants are not required to file a formal complaint or participate
in a grievance process in order to report sexual harassment and receive
supportive measures.\1464\ Thus, regardless of how a complainant
perceives or anticipates the experience of a grievance process, a
complainant has the right to report sexual harassment and receive
supportive measures. If or when a complainant also decides to file a
formal complaint initiating a grievance process against a respondent,
Sec. 106.45 ensures that the burden of gathering evidence, and the
burden of proof, remain on the recipient and not on the complainant (or
respondent). Complainants who participate in a grievance process
receive the strong, clear procedural rights and protections in Sec.
106.45 including, among other things, the right to gather, present,
review, and respond to evidence, the right to review and respond to the
recipient's investigative report summarizing relevant evidence, and the
right to pose questions to be answered by a respondent to further the
complainant's perspective about the case and what the outcome should
be, and the right to an advisor of choice to advise and assist the
complainant throughout the process.\1465\ Whether the recipient selects
a preponderance of the evidence standard, or a clear and convincing
evidence standard, complainants have the right and opportunity to
participate in the process on an equal basis with the respondent.
Regardless of which standard of evidence a recipient selects, we
reiterate that neither standard requires corroborating evidence in
order to reach a determination regarding responsibility; the standard
of evidence reflects the ``degree of confidence'' that a decision-maker
has in correctness of the factual conclusions reached.\1466\
---------------------------------------------------------------------------
\1464\ Section 106.44(a).
\1465\ Section 106.45(b)(5)(i); Sec. 106.45(b)(5)(iii); Sec.
106.45(b)(5)(iv); Sec. 106.45(b)(5)(vi); Sec. 106.45(b)(5)(vii);
Sec. 106.45(b)(6).
\1466\ Cal. ex rel. Cooper v. Mitchell Bros.' Santa Ana Theater,
454 U.S. 90, 92-93 (1981) (noting that the ``purpose of a standard
of proof is to instruct the factfinder concerning the degree of
confidence our society thinks he should have in the correctness of
factual conclusions for a particular type of adjudication'').
---------------------------------------------------------------------------
The Department understands that whether a determination regarding
responsibility is reached using the preponderance of the evidence
standard or the clear and convincing evidence standard, the outcome
reflects the weight and persuasiveness of the available, relevant
evidence in the case. We have added Sec. 106.71 in the final
regulations to caution recipients not to draw conclusions about any
party's truthfulness during a grievance process based solely on the
outcome of the case. The final regulations do not preclude a recipient
from keeping supportive measures in place even after a determination
that a respondent is not responsible, so complainants do not
necessarily need to be left in constant contact with the respondent,
regardless of the result of a grievance process. The Department
understands the potential for loss of educational access for
complainants, and for respondents, in situations where sexual
harassment allegations are not resolved accurately. The Department is
not aware of a Federal appellate court holding that the clear and
convincing evidence standard is required to satisfy constitutional due
process or fundamental fairness in Title IX proceedings, and the
Department is not aware of a Federal appellate court holding that the
preponderance of the evidence standard is required under Title IX.
Because recipients have historically used either the preponderance of
the evidence standard or the clear and convincing evidence standard in
sexual misconduct disciplinary proceedings, and because studies are
inconclusive about which standard is more likely to reduce the risk of
erroneous outcomes, the Department concludes that recipients must
select and consistently apply a standard of evidence that is not lower
than the preponderance of the evidence standard and not higher than the
clear and convincing evidence standard, but that either the
preponderance of the evidence standard or the clear and convincing
evidence standard may be applied to reach accurate determinations in a
Title IX grievance process, consistent with constitutional due process
and fundamental fairness and with Title IX's non-discrimination
mandate. The Department believes that the predictable, fair grievance
process prescribed under Sec. 106.45 will convey to complainants and
respondents that the recipient treats formal complaints of sexual
harassment seriously and aims to reach a factually accurate conclusion;
the Department does not agree that using one standard of evidence
rather than the other conveys to respondents that Title IX sexual
harassment can be perpetrated without consequence.
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction. We have added Sec. 106.71
prohibiting retaliation for exercising rights under Title IX and
specifying that while a recipient may punish a party for making bad-
faith materially false statements during a grievance process, the
outcome of the case alone cannot be the basis for concluding that a
party made a bad-faith materially false statement.
Consistency of Standards of Evidence Across Recipients
Comments: A few commenters raised concerns that allowing recipients
to choose between two standards of evidence will lead to inconsistent
systems across the country, which may complicate campus crime reporting
under the Clery Act and make it harder for prospective students to
compare crime statistics across campuses. Commenters argued that the
Department should not allow justice to apply unequally across the
country.
Discussion: These final regulations do not alter requirements under
the Clery Act or its implementing regulations. The Department disagrees
that data gathering and reporting under the Clery Act will be affected
by the standard of evidence selected by a recipient for resolving
formal complaints of sexual harassment under Title IX. A recipient's
obligations to report under the Clery Act depend on when a crime has
been reported to the recipient and do not depend on the outcome of any
disciplinary proceeding that results from a person's report of a crime.
The final regulations' approach to the standard of evidence for
Title IX grievance processes (whereby a recipient may select either the
preponderance of the evidence standard, or the clear and convincing
evidence standard), may result in some recipients selecting one
standard and other recipients selecting the other standard. The
Department disagrees that this approach results in ``unequal justice''
across the country. The Department believes that this approach
[[Page 30385]]
to the standard of evidence maintains consistency with respect to all
Title IX grievance processes, across recipients, because all grievance
processes regardless of which standard of evidence a recipient applies,
are fair processes likely to lead to accurate determinations regarding
responsibility.
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction.
Standards of Evidence Below the Preponderance of the Evidence
Comments: A few commenters proposed that the Department consider
lower standards of evidence than the preponderance of the evidence
standard. One commenter suggested ``substantial evidence,'' or enough
relevant evidence that a reasonable person would find supports the
fact-finder's conclusion. Another commenter suggested ``reasonable
cause'' and noted that child welfare agencies protecting children from
abuse use the ``reasonable cause'' standard, which is lower than the
preponderance of the evidence standard.
Discussion: As discussed above, the Department does not wish to be
more prescriptive than necessary to ensure a consistent grievance
process yielding accurate outcomes, so that recipients are held
responsible for redressing sexual harassment as a form of sex
discrimination under Title IX. As commenters pointed out, the two
standards of evidence between which the final regulations permit
recipients to choose are not the only possible standards of evidence
that could be used in Title IX proceedings. For example, some
commenters urged adoption of the higher, criminal ``beyond a reasonable
doubt'' standard, while other commenters noted that preponderance of
the evidence standard is not ``the lowest'' possible standard that
could be used, because lower standards such as ``substantial
evidence,'' ``reasonable cause,'' or ``probable cause'' are used, or
have been used, in student discipline and certain types of legal
proceedings. The Department believes that students and employees
deserve clarity as to the standard of evidence a recipient will apply
during the grievance process and that recipients should be permitted as
much flexibility as reasonably possible while ensuring reliable
outcomes in these high-stakes cases. For reasons described above, the
Department believes that either the preponderance of the evidence
standard or the clear and convincing evidence standard can be applied
within the Sec. 106.45 grievance process and yield reliable outcomes,
but does not believe that a standard lower than the preponderance of
the evidence standard, or higher than the clear and convincing evidence
standard, would result in a fair process or reliable outcomes.\1467\
---------------------------------------------------------------------------
\1467\ See Lavinia M. Weizel, The Process That Is Due:
Preponderance of The Evidence as The Standard of Proof For
University Adjudications of Student-On-Student Sexual Assault
Complaints, 53 Boston Coll. L. Rev. 1613, 1635 (2012) (analyzing
court cases that have criticized colleges for using a standard of
evidence lower than the preponderance of the evidence standard, such
as what many schools have referred to as ``substantial evidence''
because using a standard lower than the preponderance of the
evidence standard ``leaves the fact-finder adrift to be persuaded by
individual prejudices rather than by the weight of the evidence
presented'') (internal quotation marks and citations omitted).
---------------------------------------------------------------------------
As discussed above, the Department does not believe that the
highest possible standard (beyond a reasonable doubt) should apply in a
noncriminal proceeding such as a Title IX grievance process where, as
commenters have accurately pointed out, a respondent's liberty
interests are not at stake.\1468\ The Supreme Court has cautioned
against applying the ``beyond a reasonable doubt'' standard to
noncriminal proceedings.\1469\ At the same time, the Department does
not believe that a standard lower than preponderance (such as
substantial evidence or probable cause) should apply to the Title IX
grievance process either, because the stakes are high for both parties
in a Title IX process; without a determination based on a probability
of accuracy greater than 50 percent (i.e., more likely than not to be
true), the Department does not believe that an outcome can be deemed
reliable or perceived as legitimate. Without a reliable outcome, the
parties, recipients, Department, and the public cannot confidently
assess whether a recipient has responded to sex discrimination in the
recipient's education program or activity by providing remedies to
victims and taking disciplinary action against perpetrators with
respect to sexual harassment allegations.
---------------------------------------------------------------------------
\1468\ The clear and convincing evidence standard is an
``intermediate standard'' that while less commonly used than the
preponderance of the evidence standard, is sometimes used in civil
cases ``involving allegations of fraud or some other quasi-criminal
wrongdoing by the defendant'' that justify reducing ``the risk to
the defendant of having his reputation tarnished erroneously.''
Addington v. Texas, 441 U.S. 418, 424 (1979) (internal quotation
marks and citations omitted). As some commenters observed, the
consequences for a respondent in a Title IX case often involve
allegations of quasi-criminal wrongdoing with possible lifelong
impact on a respondent's reputation.
\1469\ See, e.g., 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).
---------------------------------------------------------------------------
Changes: None.
Questioning the Department's Legal Authority
Comments: Several commenters contended that the NPRM's choice of
evidence standard exceeds the Department's legal authority. One
commenter argued that allowing the clear and convincing evidence
standard for sexual harassment cases but a lower preponderance of the
evidence standard for non-sexual harassment cases could violate the
Fourteenth Amendment Equal Protection Clause. Other commenters
suggested that allowing a clear and convincing evidence standard is
inconsistent with Title IX's statutory objectives and would not
effectuate the prohibition on sex discrimination. One commenter stated
that the Supreme Court, not the Department, must ultimately determine
the applicable Title IX standard of evidence. Another commenter
suggested that the NPRM's approach to the standard of evidence violates
the International Covenant on Civil and Political Rights, under which
the U.S. is obligated to prohibit and eliminate sex discrimination. One
commenter asserted that the Department lacks authority over evidence
standards at all, and that the Department should instead defer to
recipients' administrative discretion to set their own evidentiary
standards. One commenter argued that the Department lacks authority
over negotiated agreements between recipient management and employees,
and the Department's attempt to supersede these agreements with
mandated evidentiary standards is regulatory overreach. This commenter
emphasized that recipients did not contemplate such a requirement when
accepting Federal funding.
Discussion: Contrary to the claims made by some commenters, the
Department believes the final regulations address the issue of what
standard of evidence should apply in Title IX proceedings, in a
reasonable manner that falls within the Department's regulatory
authority. The
[[Page 30386]]
Department acknowledges that the statutory text of Title IX does not
reference, much less dictate, a standard of evidence to be used by
recipients to resolve allegations of sexual harassment. The
Department's authority to regulate on the subject of sexual harassment,
including how a recipient responds when a complainant files a formal
complaint raising allegations of sexual harassment against a
respondent, flows from the Department's statutory directive to
promulgate rules and regulations to effectuate the purposes of Title
IX.\1470\ Those purposes have been described by the Supreme Court as
preventing Federal funds from supporting education programs or
activities that tolerate sex discriminatory practices and providing
individuals with effective protections against such sex discriminatory
practices.\1471\
---------------------------------------------------------------------------
\1470\ 20 U.S.C. 1681; 20 U.S.C. 1682; Davis v. Monroe Cnty. Bd.
of Educ., 526 U.S. 629, 638-39 (1999).
\1471\ See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979)
(noting that the primary congressional purposes behind Title IX were
``to avoid the use of Federal resources to support discriminatory
practices'' and to ``provide individual citizens effective
protection against those practices.''). As noted previously, the
Department is not aware of a Federal appellate court holding that
the preponderance of the evidence standard is required in order to
be consistent with Title IX's non-discrimination mandate, and is not
aware of a Federal appellate court holding that the clear and
convincing evidence standard is required to satisfy constitutional
due process or fundamental fairness in Title IX proceedings. The
Department believes that either of these two standards of evidence
may be applied by a recipient in a Title IX grievance process
because both are consistent with Title IX's non-discrimination and
due process protections.
---------------------------------------------------------------------------
Where sexual harassment allegations present contested narratives
regarding a particular incident between a complainant and respondent,
accurately determining the truth of the allegations in a non-sex biased
manner is critical to ensuring that a recipient responds appropriately
by providing the complainant with remedies that restore or preserve the
complainant's equal access to education. As noted previously in this
preamble, a complainant is a victim of sexual harassment where a fair
process has reached an accurate determination that the respondent
perpetrated sexual harassment against the complainant and the final
regulations require recipients to provide such complainants with
remedies. For the reasons discussed above, the Department has
determined that a fair, reliable outcome requires that a recipient
notify its students and employees in advance of the standard of
evidence the recipient will apply in sexual harassment grievance
processes, and the Department has further determined that either the
preponderance of the evidence standard, or the clear and convincing
evidence standard (but not a standard lower than preponderance of the
evidence or higher than clear and convincing evidence) can produce an
accurate determination. Both of the standards of evidence available for
recipients to choose under these final regulations are standards common
to civil proceedings, and not to criminal proceedings. The difference
between the two options is a difference in the degree of confidence
that each recipient decides that a decision-maker must have in the
factual correctness of the conclusions reached in Title IX sexual
harassment cases; that is, the difference between having confidence
that a conclusion is based on facts that are more likely true than
not,\1472\ or having confidence that a conclusion is based on facts
that are highly probable to be true.\1473\ Thus, the Department's
provisions regarding selection and application of a standard of
evidence effectuates the dual purposes of Title IX--preventing Federal
dollars from flowing to schools that fail to protect victims of sexual
harassment, and providing individuals with effective protections
against discriminatory practices that occur by failure to accurately
determine who has been victimized by sexual harassment. At the same
time, these provisions regarding selection and application of a
standard of evidence are consistent with constitutional due process and
fundamental fairness. Fair adversarial procedures increase the
probability that the truth of allegations will be accurately
determined,\1474\ and reduce the likelihood that impermissible sex bias
will affect the outcome. Acknowledging the arguments from commenters
urging the Department to mandate one or the other standard, the
Department has determined that either the preponderance of the evidence
standard or the clear and convincing evidence standard reasonably can
be applied as part of the fair procedures prescribed under Sec.
106.45.
---------------------------------------------------------------------------
\1472\ A preponderance of the evidence standard of evidence is
understood to mean concluding that a fact is more likely than not to
be true. E.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (a
preponderance of the evidence standard ``requires the trier of fact
to believe that the existence of a fact is more probable than its
nonexistence'') (internal quotation marks and citation omitted).
\1473\ A clear and convincing evidence standard of evidence is
understood to mean concluding that a fact is highly probable to be
true. E.g., Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th
Cir. 2004) (a clear and convincing evidence standard requires
``sufficient evidence to produce in the ultimate factfinder an
abiding conviction that the truth of its factual contentions are
[sic] highly probable.'') (internal quotation marks and citation
omitted; brackets in original).
\1474\ The adversarial ``system is premised on the well-tested
principle that truth--as well as fairness--is `best discovered by
powerful statements on both sides of the question.' '' Penson v.
Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the
Judge Have a Right to Qualified Counsel?, 61 Am. Bar Ass'n J. 569,
569 (1975)).
---------------------------------------------------------------------------
The Department further notes that the Supreme Court has
specifically approved of the Department's authority to regulate
specific requirements under Title IX even when those requirements are
not referenced under the statute and even when the administratively
imposed requirements do not represent a definition of sex
discrimination under the statute; the Department has wide latitude to
issue requirements for the purpose of furthering Title IX's non-
discrimination mandate, including measures designed to make it less
likely that sex discrimination will occur, even if a Federal court
would not hold the recipient accountable to the same requirements in a
private lawsuit under Title IX.\1475\ For example, the Department's
existing regulations in 34 CFR 106 have, since 1975, required
recipients to have in place grievance procedures for the ``prompt and
equitable'' resolution of complaints that a recipient is committing sex
discrimination,\1476\ even though the Title IX statute does not require
recipients to have in place any grievance procedures to handle sex
discrimination complaints.
---------------------------------------------------------------------------
\1475\ See, e.g., Gebser, 524 U.S. at 291-92 (refusing to allow
plaintiff to pursue a claim under Title IX based on the school's
failure to comply with the Department's regulatory requirement to
adopt and publish prompt and equitable grievance procedures, stating
``And in any event, the failure to promulgate a grievance procedure
does not itself constitute `discrimination' under Title IX. Of
course, the Department of Education could enforce the requirement
administratively: Agencies generally have authority to promulgate
and enforce requirements that effectuate the statute's non-
discrimination mandate, 20 U.S.C. 1682, even if those requirements
do not purport to represent a definition of discrimination under the
statute.'').
\1476\ The final regulations revise 34 CFR 106.8(b), in ways
discussed in the ``Section 106.8(b) Dissemination of Policy''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble. Under the final regulations, recipients
still must have grievance procedures that provide for the prompt and
equitable resolutions of complaints from students and employees
alleging sex discrimination. The final regulations update Sec.
106.8 to clarify that ``prompt and equitable'' grievance procedures
must still exist for sex discrimination that is not sexual
harassment, and that recipients must also notify students,
employees, and others that the recipient has a grievance process
that complies with Sec. 106.45 for the purpose of resolving formal
complaints of sexual harassment.
---------------------------------------------------------------------------
The Department rejects the contention made by one commenter that
the approach to the standard of evidence
[[Page 30387]]
contained in Sec. 106.45(b)(7)(i) of the final regulations may violate
the Fourteenth Amendment Equal Protection Clause. Nothing in the final
regulations dictates what standard of evidence recipients use in non-
sexual harassment cases, so a recipient does not necessarily treat
different types of cases differently because of the final regulations.
Further, the Department notes that the appropriate standard of review
under an Equal Protection challenge would be the rational basis test,
which upholds a State action that makes distinctions that are not based
on suspect classifications, if there is any reasonable set of facts
that could provide a rational basis for the action.\1477\ The
Department has determined that allowing recipients to select one of two
standards of evidence,\1478\ either of which can be applied within a
fair grievance process to reach accurate determinations, is rationally
related to the legitimate interest of ensuring reliable outcomes in
Title IX sexual harassment cases.
---------------------------------------------------------------------------
\1477\ F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)
(holding that in areas of social and economic policy, statutory
classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably conceivable
state of facts that could provide rational basis for
classification).
\1478\ As noted above, the final regulations removed the NPRM
condition that a recipient only use the preponderance of the
evidence standard if the recipient also uses that standard in non-
sexual harassment code of conduct proceedings.
---------------------------------------------------------------------------
With respect to obligations under international law such as the
International Covenant on Civil and Political Rights, nothing in the
final regulations impairs any U.S. obligation to prohibit and eliminate
sex discrimination, nor does the Department see any conflict between
recipients' compliance with the final regulations, and U.S. compliance
with applicable international laws or treaties.\1479\
---------------------------------------------------------------------------
\1479\ For further discussion, see the ``Conflicts with First
Amendment, Constitutional Confirmation, International Law''
subsection of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------
We discuss the implications of the final regulations' approach to
the standard of evidence with respect to a recipient's employees and
CBAs in the ``Same Evidentiary Standard in Student and Faculty Cases''
subsection of this section, above. For further discussion of the
Department's application of these final regulations to employees, see
the ``Section 106.6(f) Title VII and Directed Question 3 (Application
to Employees)'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble. For reasons discussed in the
``Spending Clause'' subsection of the ``Miscellaneous'' section of this
preamble, the Department disagrees that these final regulations exceed
the Department's regulatory authority to promulgate rules that
effectuate the purposes of Title IX with respect to education programs
or activities that receive Federal financial assistance.
Changes: None.
Alternative Approaches and Clarification Requests
Comments: Several commenters proposed alternative regulatory
language for Sec. 106.45(b)(7)(i). One commenter urged the Department
to explicitly address both sexual harassment and ``sexual misconduct''
in the standard of evidence provisions. This commenter agreed that it
was appropriate to require the same standard of evidence in student and
faculty cases but also believed that the Department should apply the
same due process rights for students and faculty alike. This commenter
also requested that the Department include ``staff'' and not just
``faculty'' in this provision.
One commenter requested that the Department explicitly define the
preponderance of the evidence standard as satisfied where the
conclusion is supported by persuasive, relevant, and substantial
evidence and the procedures are both transparent and fair. This
commenter rejected the notion that the preponderance of the evidence
standard is 50 percent ``plus a feather.'' One commenter suggested that
if in a particular case the preponderance of the evidence standard is
satisfied, but not the clear and convincing evidence standard, then the
Department should allow recipients to suspend or expel the respondent
but not put a permanent notation on the respondent's transcript that
would prevent transfer to another school. The commenter argued that
this strikes a balance between protecting wrongly convicted students
and protecting victims seeking to continue their education. One
commenter requested that the Department adopt the provision as written,
but also require recipients to provide a written explanation as to why
it is necessary to use one evidentiary standard instead of another.
Another commenter argued that the clear and convincing evidence
standard is unclear, and the Department should explicitly define it in
the final regulations. And one commenter suggested that the Department
include statistics in the final regulations to justify changing its
approach to evidentiary standards.
Commenters also raised several questions regarding evidentiary
standards. One commenter inquired as to whether the requirement that if
the preponderance of the evidence standard is used in Title IX cases
then it must be used in non-Title IX cases with the same maximum
punishment is satisfied where the preponderance of the evidence
standard is used for: (a) All conduct code violations with same maximum
punishment; (b) most of such conduct code violations; (c) more than one
but less than a majority of such violations; (d) even a single such
violation; (e) a penalty phase only (such as to impose expulsion); (f)
student infractions governed by a separate policy than the student
conduct code; or (g) student conduct code violations, but not for other
forms of discrimination or harassment by students. The same commenter
asked whether the requirement that the same standard of evidence be
used for Title IX complaints against students and faculty means
recipients must use the clear and convincing evidence standard for
student cases if the clear and convincing evidence standard is applied
to: (a) All Title IX complaints against employees; (b) Title IX
complaints against a majority of employees; (c) Title IX complaints
against even a single employee: (d) Title IX complaints against some
but not all types of misconduct by employees; (e) Title IX complaints
about even a single type of misconduct; (f) complaints about employee
misconduct not involving alleged discrimination and/or harassment by
employees towards students; (g) complaints about employee misconduct
not involving alleged discrimination and/or harassment by employees
towards other employees, (h) some, but not all, aspects of complaints
against employees (for example, where the preponderance of the evidence
standard is used to determine whether misconduct occurred, but the
clear and convincing evidence standard is required for some forms of
discipline against a class of employees, such as revoking tenure for
tenured faculty).
Discussion: The Department notes that ``sexual harassment'' is
defined in Sec. 106.30 of the final regulations, and this definition
encompasses a wide range of sexual misconduct. The Department does not
believe that the term ``sexual misconduct'' would be more appropriate
than ``sexual harassment'' in these regulations, because the Supreme
Court interpretations of Title IX refer to sexual harassment.
Furthermore, Sec. 106.45(b)(1)(vii) and Sec. 106.45(b)(7)(i) mandate
that recipients use the same standard of evidence to reach
determinations regarding responsibility in response to formal
complaints against
[[Page 30388]]
students as they do for formal complaints against employees, including
all staff and faculty, and the final regulations also require the other
provisions in Sec. 106.45 to apply to all formal complaints of sexual
harassment whether against students and employees, including faculty.
The Department declines to provide definitions of the
``preponderance of the evidence'' standard and the ``clear and
convincing evidence'' standard. The Department believes that each
standard of evidence referenced in the final regulations has a commonly
understood meaning in other legal contexts and intends the
``preponderance of the evidence'' standard to have its traditional
meaning in the civil litigation context and the ``clear and convincing
evidence'' standard to have its traditional meaning in the subset of
civil litigation and administrative proceedings where that standard is
used.\1480\
---------------------------------------------------------------------------
\1480\ See, e.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (quoting
In re Winship, 397 U.S. 358, 371-372 (1970) (Harlan, J., concurring)
(``The burden of showing something by a `preponderance of the
evidence,' the most common standard in the civil law, `simply
requires the trier of fact to believe that the existence of a fact
is more probable than its nonexistence before [he] may find in favor
of the party who has the burden to persuade the [judge] of the
fact's existence.' '') (brackets in original; citation omitted));
Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004)
(``Clear and convincing evidence requires greater proof than
preponderance of the evidence. To meet this higher standard, a party
must present sufficient evidence to produce `in the ultimate
factfinder an abiding conviction that the truth of its factual
contentions are [sic] highly probable.' '') (quoting Colorado v. New
Mexico, 467 U.S. 310, 316 (1984)) (brackets in original);
Justia.com, ``Evidentiary Standards and Burdens of Proof,'' https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/ (describing
preponderance of the evidence as proof ``that a particular fact or
event was more likely than not to have occurred'' and clear and
convincing evidence as proof ``that a particular fact is
substantially more likely than not to be true.'').
---------------------------------------------------------------------------
For discussion of transcript notations, see the ``Transcript
Notations'' subsection of the ``Determinations Regarding
Responsibility'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble.
The Department expects that recipients will select a standard of
evidence based on the recipient's belief about which standard best
serves the interests of the recipient's educational community, or
because State law requires the recipient to apply one or the other
standard, or because the recipient has already bargained with unionized
employees for a particular standard of evidence in misconduct
proceedings. The Department declines to require recipients to explain
why a recipient has selected one or the other standard of evidence,
though nothing in the final regulations precludes a recipient from
communicating its rationale to its educational community.
The Department has examined statistics, data, and information
regarding standards of evidence submitted by commenters through public
comment on the NPRM, and has considered commenters' arguments in favor
of the preponderance of the evidence standard, in favor of the clear
and convincing evidence standard, and in favor of other standards of
evidence. For reasons described above, the Department has determined
that the approach to the standard of evidence contained in Sec.
106.45(b)(1)(vii) and Sec. 106.45(b)(7)(i) of the final regulations
represents the most effective way of legally obligating recipients to
select a standard of evidence for use in resolving formal complaints of
sexual harassment under Title IX to ensure a fair, reliable grievance
process without unnecessarily mandating that a recipient select one
standard over the other.
As discussed above, and after careful consideration of many
comments we found to be persuasive, the Department removed the NPRM's
requirement that recipients may only apply the preponderance of the
evidence standard to reach determinations regarding responsibility in
Title IX proceedings if they use that same standard to address non-
sexual misconduct cases that carry the same maximum punishment.
However, the final regulations retain the NPRM's requirement that
recipients use the same standard of evidence to reach determinations of
responsibility in Title IX proceedings against students as they do for
Title IX proceedings against employees including faculty, for reasons
discussed above. With respect to the questions raised by one commenter
as to the scope of this requirement, the Department wishes to clarify
that the same standard of evidence must apply to each formal complaint
alleging sexual harassment against employees as it does for each formal
complaint alleging sexual harassment against students. In short, under
the final regulations the same standard of evidence will apply to all
formal complaints of sexual harassment under Title IX responded to by a
particular recipient, whether the respondent is a student or employee.
Changes: The Department has revised Sec. 106.45(b)(7)(i) of the
final regulations such that recipients have the choice of either
applying the preponderance of the evidence standard or the clear and
convincing evidence standard, and Sec. 106.45(b)(1)(vii) requires a
recipient to make that choice applicable to all formal complaints of
sexual harassment, including those against employees and faculty. We
have removed the limitation contained in the NPRM that would have
permitted recipients to use the preponderance of the evidence standard
only if they used that standard for non-sexual misconduct that has the
same maximum disciplinary sanction.
Section 106.45(b)(7)(ii) Written Determination Regarding Responsibility
Must Include Certain Details
Comments: A number of commenters expressed support for Sec.
106.45(b)(7) because it requires the decision-maker to provide a
written determination regarding responsibility. Commenters stated that
putting decisions in writing will prevent confusion as to what was
decided and provide a written record for appeals or other
administrative needs, or judicial review. Commenters asserted that a
written determination will protect due process and prevent schools from
inserting bias into proceedings. Commenters expressed support for Sec.
106.45(b)(7) due to concern that institutions were ``railroading''
respondents.
One commenter argued that Sec. 106.45(b)(7) is a reasonable means
of reducing sex discrimination because requiring decision-makers to
give reasons for their decisions has been shown to enhance the
thoroughness of decision making and to improve the willingness of
decision-makers to engage in self-critical thinking,\1481\ a concept
well known to the legal system.\1482\ The commenter further argued that
requiring reason-giving tends to foster independent decision making and
reduce overconfidence in decision making,\1483\ so that individual
[[Page 30389]]
decision-makers become less susceptible to group pressure,\1484\ all of
which contribute to rendering more accurate decisions.
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\1481\ Commenters cited: Itamar Simonson & Peter Nye, The Effect
of Accountability on Susceptibility to Decision Errors, 51
Organizational Behavior & Hum. Decision Processes 416, 430-32, 437
(1992); Itamar Simonson & Barry M. Staw, Deescalation Strategies: A
Comparison of Techniques for Reducing Commitment to Losing Courses
of Action, 77 J. Applied Psychol. 419, 422-25 (1992); Diederik A.
Stapel et al., The Impact of Accuracy Motivation on Interpretation,
Comparison, and Correction Processes: Accuracy x Knowledge
Accessibility Effects, 74 Journal of Personality & Social Psychol.
878, 891 (1998); Erik P. Thompson et al., Accuracy Motivation
Attenuates Covert Priming: The Systematic Reprocessing of Social
Information, 66 Journal of Personality & Social Psychol. 474, 484
(1994).
\1482\ Commenters cited: Frederick Schauer, Giving Reasons, 47
Stan. L. Rev. 633, 657-58 (1995) (``[W]hen institutional designers
have grounds for believing that decisions will systematically be the
product of bias, self-interest, insufficient reflection, or simply
excess haste, requiring decision-makers to give reasons may
counteract some of these tendencies.'').
\1483\ Commenters cited: Karen Siegel-Jacobs & J. Frank Yates,
Effects of Procedural and Outcome Accountability on Judgment
Quality, 65 Organizational Behavior & Hum. Decision Processes 1, 15
(1996); Philip E. Tetlock & Jae Il Kim, Accountability and Judgment
Processes in a Personality Prediction Task, 52 Journal of
Personality & Social Psychol. 700, 706-07 (1987).
\1484\ Commenters cited: Marceline B.R. Kroon et al., Managing
Group Decision Making Processes: Individual Versus Collective
Accountability and Groupthink, 2 Int'l J. of Conflict Mgmt. 91, 99
(1991).
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A few commenters urged the Department to also require that the
written determination must include or describe contradictory facts,
exculpatory evidence, all evidence presented at the hearing, and/or
credibility assessments. One commenter argued that Sec.
106.45(b)(7)(ii)(C) should be revised to require findings of fact
sufficient to allow the parties and any appellate reviewer to
understand the facts tending to support or refute the determination.
Some commenters argued that requiring a written determination is
too burdensome, especially for smaller institutions and for elementary
and secondary schools.
Discussion: The Department believes Sec. 106.45(b)(7) serves the
important function of ensuring that both parties know the reasons for
the outcome of a Title IX grievance process, and agrees that requiring
decision-makers to give written reasoning helps ensure independent
judgment and decision making free from bias. Section 106.45(b)(7)(i)
requires recipients to issue a written determination regarding
responsibility to foster reliability and thoroughness, and to ensure
that a recipient's findings are adequately explained.
Section 106.45(b)(7)(ii) mandates that the 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. Section 106.45(b)(7)(iii)
requires that this written determination be provided to the parties
simultaneously. The substance of these provisions generally tracks
language in the Clery Act regulations at 34 CFR 668.46(k)(2)(v) and
(k)(3)(iv) and reflect concepts familiar to institutions of higher
education that receive Federal student aid under Title IV of the Higher
Education Act of 1965, as amended. The Department believes that the
benefits of these provisions, including promoting transparency and
equal treatment of the parties, are also important in the elementary
and secondary school context, even though elementary and secondary
schools are not subject to the Clery Act. Furthermore, the provisions
in Sec. 106.45(b)(7) are consistent with Department guidance, which
has always been applicable to both postsecondary institutions and
elementary and secondary schools. For example, the 2001 Guidance stated
that an equitable grievance procedure should include providing notice
to the parties of the outcome of a sexual harassment complaint,\1485\
and the withdrawn 2011 Dear Colleague Letter stated that notice of the
outcome should be in writing and sent to both parties
concurrently.\1486\
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\1485\ 2001 Guidance at 20 (prompt and equitable grievance
procedures should provide for ``Notice to the parties of the outcome
of the complaint'').
\1486\ 2011 Dear Colleague Letter at 13 (``Both parties must be
notified, in writing, about the outcome of both the complaint and
any appeal, i.e., whether harassment was found to have occurred. OCR
recommends that schools provide the written determination of the
final outcome to the complainant and the alleged perpetrator
concurrently.'').
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Requiring recipients to describe, in writing, conclusions (and
reasons for those conclusions) will help prevent confusion about how
and why a recipient reaches determinations regarding responsibility for
Title IX sexual harassment. We agree that requiring a written
determination (sent simultaneously to both parties) is an important due
process protection for complainants and respondents, ensuring that both
parties have relevant information about the resolution of allegations
of Title IX sexual harassment. Section 106.45(b)(7) also helps prevent
injection of bias into Title IX sexual harassment grievance processes,
by requiring transparent descriptions of the steps taken in an
investigation and explanations of the reasons why objective evaluation
of the evidence supports findings of facts and conclusions based on
those facts. Because the Department believes that Sec. 106.45(b)(7) is
important to ensure that recipients consistently, transparently,
fairly, and accurately respond to Title IX sexual harassment, the
Department declines to exempt smaller institutions, or elementary and
secondary schools, from the requirements of this provision. The
Department believes that the requirements of this provision are
reasonable, and that the burden of complying with this provision is
outweighed by the benefit of a consistent, transparent Title IX
grievance process for students in elementary and secondary schools, as
well as students at postsecondary institutions, irrespective of the
size of the institution's student body.
In order to ensure that the written determination resolves
allegations that a respondent committed sexual harassment as defined in
Sec. 106.30, and to avoid confusion caused by the NPRM's reference in
Sec. 106.45(b)(7)(ii)(A) to a recipient's code of conduct, we have
revised that provision to reference identification of ``allegations
potentially constituting sexual harassment as defined in Sec. 106.30''
instead of ``identification of sections of the recipient's code of
conduct alleged to have been violated.'' Recipients retain discretion
to also refer in the written determination to any provision of the
recipient's own code of conduct that prohibits conduct meeting the
Sec. 106.30 definition of sexual harassment; however, this revision to
Sec. 106.45(b)(7)(ii)(A) helps ensure that these final regulations are
understood to apply to a recipient's response to Title IX sexual
harassment, and not to apply to a recipient's response to non-Title IX
types of misconduct.
We decline to expressly require the written determination to
address evaluation of contradictory facts, exculpatory evidence, ``all
evidence'' presented at a hearing, or how credibility assessments were
reached, because the decision-maker is obligated to objectively
evaluate all relevant evidence, including inculpatory and exculpatory
evidence (and to avoid credibility inferences based on a person's
status as a complainant, respondent, or witness), under Sec.
106.45(b)(1)(ii). It is precisely this objective evaluation that
provides the basis for the decision-maker's ``rationale'' for ``the
result'' of each allegation, which must be described in the written
determination under Sec. 106.45(b)(7)(ii)(E). The Department believes
that Sec. 106.45(b)(7), as revised in these final regulations,
provides for a written determination adequate for the purposes of an
appeal or judicial proceeding reviewing the determination regarding
responsibility. We therefore decline to revise the language of this
provision to specify that findings of fact must be described
sufficiently to allow the parties and any appellate reviewer to
understand the facts supporting or refuting the determination.
Changes: We have revised Sec. 106.45(b)(7)(ii)(A) to reference
identification of allegations potentially constituting sexual
harassment as defined in Sec. 106.30, instead of referencing
identification of sections of the recipient's code of conduct alleged
to have been violated.
Comments: One commenter argued that requiring a written
determination that describes the procedural steps of the investigation
(i.e., Sec. 106.45(b)(7)(ii)(B) requiring inclusion
[[Page 30390]]
of notifications to parties, interviews of parties and witnesses, site
visits, methods used to gather evidence) has no equivalent within
criminal or civil procedure. Commenters argued that this provision
would be unreasonably burdensome for recipients, especially for smaller
institutions and for elementary and secondary schools. Some commenters
asserted that the only procedural detail that should be included in the
written determination is the investigation timeline. Other commenters
asserted that information about the investigation should be included in
the investigative report, but not in the written determination.
One commenter argued that proposed Sec. 106.45(b)(7)(ii)(C)-(D),
which required that the written determination include findings of fact
supporting the determination and ``conclusions regarding the
application of the recipient's code of conduct to the facts,'' would be
contrary to the Administrative Procedure Act (``APA''), 5 U.S.C. 701 et
seq., because the Department is not authorized to impose requirements
on a recipient based whether the recipient's own code of conduct has
been violated. The commenter argued that the Department's authority is
strictly restricted to the application of Title IX to the facts and
does not extend to application of the recipient's code of conduct to
the facts.
One commenter expressed concern that the requirements related to
the written determination are an example of how the proposed rules
would conflate a sexual harassment investigation with disciplinary
proceedings for behavioral violations. The commenter asserted that in
the elementary and secondary school context, a sexual harassment
investigation is designed to determine whether or not a student
experienced sexual harassment and what remedies are necessary to stop
the harassment, eliminate a hostile environment, prevent the harassment
from reoccurring, and address any effects of the hostile environment.
The commenter furthered argued that determinations of an individual
student's culpability for sexual harassment should be handled under a
school district's code of conduct and State student discipline due
process laws.
A number of commenters expressed concerns about including
``remedies'' in the written determination, under proposed Sec.
106.45(b)(7)(ii)(E). One commenter requested a definition of the term
``remedies.'' One commenter argued that this proposed provision's
reference to including ``any sanctions the recipient imposes on the
respondent, and any remedies provided by the recipient to the
complainant'' is consistent with FERPA. Other commenters asserted that
disclosing a complainant's remedies to the respondent may violate
FERPA, and would violate the complainant's right to privacy regardless
of whether FERPA would allow the disclosure. Commenters asserted that
including remedies in the written determination would endanger safety
on campus, deter students from seeking help, deter faculty and staff
from participating in the process, and subject victims to further
harassment from respondents. With respect to describing sanctions and
remedies, some commenters suggested adding a FERPA compliance clause to
this provision, and other commenters suggested modifying this provision
to mirror the Clery Act.
Commenters asserted that the Department should require the written
determination to contain assurances that the school will take steps to
prevent recurrence of harassment, correct the discriminatory effects of
harassment, and prevent any retaliation against the complainant.
Commenters argued that the effects of harassment can impact not only
the complainant and respondent but also other members of the
recipient's community; because of this, commenters asserted, the final
regulations should specify that a school's obligation to respond
following a determination of responsibility is not time-limited, and
should require the school to take steps to ensure that remedial efforts
are successful and to take further remedial steps if initial remedial
efforts are not successful.
One commenter suggested that the Department should require
recipients to make a transcript or recording of all proceedings, and
that the Department should require recipients to provide the transcript
or recording to the parties along with the determination regarding
responsibility, at least ten days prior to any appeal deadline.
Commenters suggested that the written determination should not be
prepared by the recipient but, rather, should be prepared by the
Department, the U.S. Department of Justice, or a local or State human
rights commission under work-sharing agreements. Commenters suggested
that the same arrangement should be used to conduct the entire
investigation.
Discussion: The Department believes that the written determination
must include certain key elements so that the parties have a complete
understanding of the process and information considered by the
recipient to reach its decision and that as revised, Sec.
106.45(b)(7)(ii) appropriately and reasonably prescribes what a
determination regarding responsibility must include. Such key
information includes: Identification of the allegations alleged to
constitute sexual harassment as defined in Sec. 106.30; the procedural
steps taken from receipt of the formal complaint through the
determination regarding responsibility; findings of fact supporting the
determination; conclusions regarding the application of the recipient's
code of conduct to the facts of the conduct allegedly constituting
Title IX sexual harassment; a determination regarding responsibility
for each allegation and the decision-maker's rationale for the result;
any disciplinary sanctions the recipient imposes on the respondent and
whether the recipient will provide remedies to the complainant; and
information regarding the appeals process and the recipient's
procedures and permissible bases for the complainant and respondent to
appeal. These requirements promote transparency and consistency so that
both parties have a thorough understanding of how a complainant's
allegations of Title IX sexual harassment have been resolved. We
believe these requirements are reasonable, and that the cost or burden
associated with compliance with this provision is outweighed by the
benefit of promoting a consistent, transparent Title IX grievance
process, including in elementary and secondary schools, and in
institutions of a smaller size.
The Department acknowledges a commenter's point that a requirement
to prepare a written determination that details steps of the
investigation has no equivalent within criminal or civil procedure.
However, in a criminal or civil proceeding, the criminal defendant or
the civil litigation parties would likely have access to the same
information through a combination of discovery rules and the ability to
compel witnesses to appear at trial. To avoid attempting to make
educational institutions mimic courts of law, the final regulations
refrain from imposing discovery rules or purporting to create subpoena
powers to compel parties or witnesses to be interviewed or to testify,
in a Title IX grievance process. However, the written determination
detailing the steps of the recipient's investigation ensures that both
parties in a Title IX grievance process understand the investigative
process. This gives the parties equal opportunity
[[Page 30391]]
to raise any procedural irregularities on appeal.\1487\
---------------------------------------------------------------------------
\1487\ Section 106.45(b)(8) (requiring recipients to offer both
parties equal opportunity to appeal, on any of three bases,
including that procedural irregularity affected the outcome of the
matter).
---------------------------------------------------------------------------
The Department disagrees with the suggestion by commenters that the
Department should require the investigator's timeline to be included in
the investigative report, and not in the written determination. The
investigative report must fairly summarize relevant evidence, but Sec.
106.45(b)(5)(vii) does not require that investigative report to
describe the investigator's timeline. The procedural steps in the
investigation will instead appear in the written determination
regarding responsibility, so that both parties have a thorough
understanding of the investigative process that led to the decision-
maker's determination regarding responsibility.
The Department disagrees that requiring the written determination
to include findings of fact supporting the determination and
conclusions regarding application of the recipient's code of conduct to
the facts runs contrary to the APA or otherwise exceeds the
Department's regulatory authority. The Department recognizes that the
Department's regulatory authority to enforce Title IX does not extend
to purporting to enforce a recipient's own code of conduct. Nothing in
these final regulations, including with respect to a recipient's
issuance of a written determination regarding responsibility, purports
to regulate a recipient's application of the recipient's own code of
conduct. Instead, these final regulations, including the provisions in
Sec. 106.45(b)(7)(ii), govern how a recipient describes and explains
its conclusions regarding Title IX sexual harassment in the recipient's
education program or activity. The facts supporting the determination
required to be included in the written determination under Sec.
106.45(b)(7)(ii) are relevant to evaluating a recipient's response to
Title IX sexual harassment regardless of the recipient's code of
conduct. However, requiring the recipient to ``match up'' how the
conduct that allegedly constituted Title IX sexual harassment also
violates the recipient's code of conduct serves to notify the parties
of any rules the recipient applies in its own code of conduct that,
while not required by the Sec. 106.45 grievance process, are
permissible exercises of a recipient's discretion with respect to a
Title IX grievance process. In response to commenters' concerns, we
have revised Sec. 106.45(b)(7)(ii)(A) to remove reference to
identification of sections of the recipient's code of conduct alleged
to have been violated, and replaced that language with a requirement to
identify the allegations potentially constituting sexual harassment as
defined in Sec. 106.30. Similarly, as discussed in the ``Written
Notice of Allegations'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble, we have
revised Sec. 106.45(b)(2) to remove unnecessary references to the
recipient's ``code of conduct'' that could have mistakenly implied that
alleged conduct under investigation in a Sec. 106.45 grievance process
is conduct that violates the recipient's code of conduct without also
constituting sexual harassment as defined in Sec. 106.30. With these
revisions, we do not believe that the final regulations, including
106.45(b)(7)(ii), unduly or impermissibly reference a recipient's code
of conduct. Rather, this provision gives the parties information about
how the conduct under investigation and adjudication (i.e., Title IX
sexual harassment) fits within a recipient's own unique code of conduct
so that the parties are apprised of rules unique to the recipient's own
code of conduct that affect the determination or consequences of a
determination regarding responsibility. For example, the final
regulations include an entry for ``Consent'' under Sec. 106.30 that
assures recipients that the Department will not require recipients to
adopt any particular definition of consent. Parties will benefit from a
written determination that, for example, explains how the recipient's
own definition of ``consent'' has been applied in a particular case to
an allegation of sexual assault. Thus, the written determination
requirement to include how the conduct being adjudicated fits into the
recipient's code of conduct does not imply that the Department is
regulating conduct outside Title IX sexual harassment.
The Department disagrees that the final regulations, or the written
determination provision in particular, conflate sexual harassment with
student code of conduct violations. As explained above, the written
determination requirements in Sec. 106.45(b)(7)(ii) are intended to
transparently disclose to the parties how the conduct under
investigation and subject to adjudication (which conduct, by virtue of
Sec. 106.45(b)(2) must consist of allegations that meet the Sec.
106.30 definition of sexual harassment) ``matches up'' against
particular portions of a recipient's code of conduct, so that the
parties understand how rules unique to a recipient's code of conduct
affect the determination. As to conduct that does not meet the Sec.
106.30 definition of sexual harassment (or does not otherwise meet the
jurisdictional conditions specified in Sec. 106.44(a)), a formal
complaint regarding such conduct must be dismissed for purposes of
Title IX, though such conduct may be addressed by the recipient under
its own code of conduct.\1488\ Thus, the written determination
provision in Sec. 106.45(b)(7) only applies to Title IX sexual
harassment, and does not govern a recipient's investigation or
adjudication (or other response) to other misconduct under the
recipient's own student conduct codes.
---------------------------------------------------------------------------
\1488\ Section 106.45(b)(3)(i).
---------------------------------------------------------------------------
The Department does not believe a definition of the term
``remedies'' is necessary, but the final regulations add a statement in
Sec. 106.45(b)(1)(i) to lend clarity as to the nature of remedies.
That provision now explains that remedies may include the same
individualized services described in Sec. 106.30 as ``supportive
measures'' but that remedies need not be non-disciplinary or non-
punitive and need not avoid burdening the respondent. Beyond this, the
Department believes recipients should have the flexibility to offer
such remedies as they deem appropriate to the individual facts and
circumstances of each case, bearing in mind that the purpose of
remedies is to restore or preserve the complainant's equal access to
education.
The Department acknowledges the privacy concerns expressed by
commenters regarding the inclusion of remedies in the written
determination of responsibility. In response to commenters' concerns
about the privacy aspects of disclosing what remedies a victim receives
and the resulting possible effects of deterring reporting or making
complainants feel unsafe, and in an effort to align these Title IX
regulations with what recipients are required to do under the Clery
Act, the final regulations revise Sec. 106.45(b)(7)(ii)(E) to state
(emphasis added) that the written determination must include any
disciplinary sanctions the recipient imposes on the respondent,\1489\
``and whether remedies will be provided by the recipient to the
complainant'' to assure complainants that the nature of remedies
provided
[[Page 30392]]
does not appear in the written determination, while preserving the
overall fairness of giving both parties identical copies of the written
determination simultaneously. The final regulations also add Sec.
106.45(b)(7)(iv) stating that the Title IX Coordinator is responsible
for the effective implementation of remedies. These revisions to Sec.
106.45(b)(7) help ensure that complainants know that where the final
determination has indicated that remedies will be provided, the
complainant can then communicate separately with the Title IX
Coordinator to discuss what remedies are appropriately designed to
preserve or restore the complainant's equal access to education. The
Department believes that these changes address commenters' concerns
about the privacy implications, safety concerns, and discouragement of
students and employees from participating in the process, that were
raised by the proposed rules' requirement that remedies granted to a
victim must be stated and described in the written determination. For
discussion of these final regulations' reference to remedies and
disciplinary sanctions, and FERPA, see the ``Sec. 106.6(e) FERPA''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble.
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\1489\ We have also revised this provision to use the phrase
``disciplinary sanctions'' instead of ``sanctions'' as part of
consistent use throughout the final regulations of ``disciplinary
sanctions'' to avoid confusion over whether ``sanctions'' means
something other than ``disciplinary sanctions.''
---------------------------------------------------------------------------
Commenters suggested requiring assurances that the school will take
steps to prevent recurrence of harassment, correct its discriminatory
effects, and prevent any retaliation against the complainant because
the effects of harassment can go beyond the complainant and the
respondent. The Department does not believe such assurances are
necessary given the recipient's ongoing and continuous duty to not be
deliberatively indifferent. The Department believes the existing
requirements under the final regulations are sufficient to promote
prevention of recurrence of harassment and restore equal access to
education. The Department believes the standard it has articulated,
that a recipient's response to sexual harassment must not be clearly
unreasonable in light of the known circumstances, sufficiently
addresses further Title IX concerns for all students following a
determination of responsibility. In response to concerns about
retaliation, the Department has added a new section addressing the
topic, Sec. 106.71.
The Department is persuaded by the suggestion from commenters that
the Department require recipients to make a transcript or recording of
the live hearing. The Department believes that such a transcript is
necessary to preserve the record for appeal and judicial review. This
requirement is now contained in Sec. 106.45(b)(6)(i), requiring a
recipient to make an audiovisual recording, or a transcript, of any
live hearing, but the Department notes that this recording or
transcript is not required to be part of the written determination sent
to the parties. Rather, under Sec. 106.45(b)(6)(i) the parties have
equal opportunity to inspect and review the recording or transcript of
a live hearing, but that inspection and review right does not obligate
the recipient to send the parties a copy of the recording or
transcript.
The Department acknowledges the suggestions by commenters that the
written determination should be prepared by the Department, the
Department of Justice, or a local or State human rights commissions
through work-sharing agreements. While the final regulations do not
preclude a recipient from delegating the recipient's obligation to
investigate and adjudicate formal complaints of sexual harassment to
persons or entities not affiliated with the recipient (for example,
under a regional center model), Title IX governs each recipient's
obligation to appropriately respond to sexual harassment in the
recipient's education program or activity, and the recipient remains
responsible for ensuring that it responds to a formal complaint by
conducting a grievance process that complies with Sec. 106.45,
including issuing a written determination.
Changes: The Department revised this provision to harmonize the
language with other provisions of the final regulations. Section
106.45(b)(7) has been revised to reflect changes in Sec. 106.45(b)(8),
which now makes appeals mandatory. The proposed version of Sec.
106.45(b)(7)(i) included language reflecting that providing for appeals
was optional. Section 106.45(b)(7)(ii) uses the phrase ``disciplinary
sanctions'' instead of ``sanctions.'' We have added Sec.
106.45(b)(7)(iv) to clarify that the Title IX Coordinator is
responsible for effective implementation of any remedies. This
clarification reflects the mirror provision in the Sec. 106.30
definition of ``supportive measures'' that made the Title IX
Coordinator responsible for the effective implementation of supportive
measures. We have also revised Sec. 106.45(b)(7)(ii)(E) to require the
written determination to state whether remedies will provided to the
complainant.
Section 106.45(b)(7)(iii) Timing of When the Decision Becomes Final
Comments: One commenter expressed general support for Sec.
106.45(b)(7)(iii). A few commenters expressed concerns regarding when
the determination regarding responsibility becomes final and argued
that the Department should permit recipients flexibility to impose
sanctions on respondents upon the initial determination of
responsibility and before the appeal process is complete. One commenter
asserted that this approach is a best practice; appeals are meant to be
limited to correcting rare error, and recipients can offer remote
learning opportunities to respondents during the appeal period to
preserve educational access.
One commenter argued that the proposed requirement that an appeal
by either party ``stays'' the determination is also problematic because
practice is not accepted in other elementary and secondary school
proceedings. The commenter reasoned that a school for example, would
almost never stay a school's suspension or expulsion order pending an
appeal and that if a school district determines after a thorough
investigation that sexual harassment occurred, school officials need to
implement remedies as soon as possible in addition to continuing any
interim measures already in place.
One commenter expressed concern about the possibility that nearly
all respondents found in violation of a school's code of conduct will
automatically appeal to OCR to have their findings overturned since
such an appeal is free and can only help their position. This will
significantly increase the effort and expenditures of recipients when
compared with the far less expensive task of responding to an OCR data
request and addressing any issues through the administrative process.
One commenter suggested that the Department clarify the meaning of
``final,'' because if ``final'' means the determination can be the
basis for disciplinary measures then it could conflict with existing
State timelines and appeal procedures for disciplinary decisions. One
commenter expressed concern that making a ``final determination'' at
the hearing could have the effect of limiting essential time to render
informed decisions, thus unfairly altering the hearing process for all
parties.
One commenter suggested that institutions should not be required to
disclose the final outcome where doing so might upset the complainant.
Discussion: The Department appreciates the support for
[[Page 30393]]
Sec. 106.45(b)(7)(iii) regarding the timing of when determinations
regarding responsibility become final. We acknowledge the concerns
raised by some commenters regarding the effect that the timing of when
a decision becomes final may have on recipients' ability to impose
sanctions on respondents and remedies for complainants. The intent of
this provision is to promote transparency for, and equal treatment of,
the parties, and to ensure that the recipient takes action on a
determination that represents a reliable, accurate outcome.
Importantly, the final regulations require recipients to offer both
parties an appeals process to help mitigate risks such as procedural
irregularity and investigator, decision-maker, or informal resolution
facilitator bias. In order to ensure that both parties have the
opportunity to benefit from their right to file an appeal, the written
determination becomes ``final'' only after the time period to file an
appeal has expired, or if a party does file an appeal, after the appeal
decision has been sent to the parties. If the written determination
became final prior to the outcome of an appeal, the right to have the
case heard on appeal might be undermined. We also note that the Sec.
106.44(c) emergency removal provision gives recipients some flexibility
to remove respondents to protect the physical health or safety of
students or employees. The Department notes that the final regulations
also require recipients to designate reasonably prompt time frames for
concluding appeals and leave recipients discretion over appeal
procedures; thus, the appeals process would not necessarily have to be
lengthy.
The Department disagrees with commenters who argued that the
proposed requirement that an appeal by either party ``stays'' the
determination is problematic. The Department acknowledges that the
``judgment'' in a recipient's determination regarding responsibility is
more analogous to injunctive relief than monetary damages, and that
civil court rules (e.g., the Federal Rules of Civil Procedure) do not
provide for automatic stay of injunctions. However, the process for
concluding a recipient's appeal (thereby finalizing the determination)
differs from the process for an appeal in civil court. The recipient's
appeal process is likely to conclude during a much shorter time period
than an appeal from a court judgment, and furthermore, the final
regulations obligate the recipient to offer supportive measures
throughout the grievance process (unless failing to do so would not be
clearly unreasonable) thus maintaining a status quo through the
grievance process that may continue a short time longer while an appeal
is being resolved. The Department believes that in order for an appeal,
by either party, to be fully effective, the recipient must wait to act
on the determination regarding responsibility while maintaining the
status quo between the parties through supportive measures designed to
ensure equal access to education. Because a recipient's determination
regarding responsibility in the nature of injunctive relief, if the
recipient acts on a determination prior to resolving any appeal against
that determination, the recipient likely will have taken steps
requiring the parties to change their positions, in ways that cannot be
easily reversed if the determination is changed due to the appeal. On
the other hand, maintaining the status quo a short time while an appeal
is resolved gives the parties, and the recipient, confidence that the
determination regarding responsibility acted upon represents a
factually accurate, reliable outcome.
The Department disagrees that all respondents will file an
``appeal'' with OCR, or that the rate at which respondents file
complaints with OCR challenging the recipient's response to a formal
complaint of sexual harassment will interfere with victims' abilities
to receive remedies under a promptly-resolved grievance process. Any
person, including any complainant or respondent, may file a complaint
with OCR claiming that a recipient has not complied with the
recipient's obligations under Title IX. However, filing a complaint
with OCR does not ``stay'' or reverse the recipient's determination
regarding responsibility. Moreover, the final regulations include Sec.
106.44(b)(2) which gives deference to the recipient's determination
regarding responsibility by assuring recipients that the Department
will not deem a recipient's determination regarding responsibility to
be evidence of deliberate indifference by the recipient, or otherwise
evidence of discrimination under Title IX by the recipient, solely
because the Assistant Secretary would have reached a different
determination based on an independent weighing of the evidence. Thus,
after a party (whether respondent or complainant) has taken advantage
of the recipient's own appeal process, the Department believes it is
unlikely that parties will rush to file with OCR, first because the
recipient's appeal process will address procedural, new evidence, and
bias or conflict of interest problems that affected the outcome, and
second because the final regulations clarify for all parties that the
Department will not reverse an outcome based solely on re-weighing the
evidence.
We appreciate the opportunity to address commenters' questions
regarding the meaning of a ``final'' determination. A ``final''
determination means the written determination containing the
information required in Sec. 106.45(b)(7), as modified by any appeal
by the parties. With respect to potential conflict with State
procedures, under the final regulations recipients have substantial
discretion to designate time frames for concluding the grievance
process, including appeals, thus lessening the likelihood that a
recipient must violate a State law with respect to timely conclusion of
a grievance process. In the event of actual conflict, our position is
that the final regulations would have preemptive effect.\1490\ Further,
the Department appreciates the opportunity to clarify here that nothing
in the final regulations requires final determinations to be made at
the hearing; the commenter who expressed concern over this possibility
appears to have misinterpreted the NPRM, as the proposed regulations
did not provide for that outcome. Rather, the final regulations provide
that a determination regarding responsibility cannot be reached without
conducting a live hearing (for postsecondary institutions), or without
first giving the parties an opportunity to submit written questions to
parties and witnesses (for elementary and secondary schools, and other
recipients who are not postsecondary institutions), and Sec.
106.45(b)(7)(ii) states that the decision-maker ``must issue a written
determination regarding responsibility'' but does not require that
written determination to be issued at the hearing. The Department notes
that the time frame for when the decision-maker should issue the
written determination will be governed by the recipient's designated,
reasonably prompt time frames under Sec. 106.45(b)(1)(v).
---------------------------------------------------------------------------
\1490\ See discussion under the ``Section 106.6(h) Preemptive
Effect'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble.
---------------------------------------------------------------------------
The Department wishes to make clear that it is certainly not our
intent to upset or traumatize complainants by requiring recipients to
provide a written determination regarding responsibility to both
complainants and respondents. To promote transparency, equal treatment
of the parties, and to ensure that both parties' right to appeal may be
meaningfully exercised, the final
[[Page 30394]]
regulations require the decision-maker to simultaneously send a copy of
the written determination to both parties. In response to commenters'
concerns that including details about remedies for complainants in the
written determination could pose unnecessary privacy, confidentiality,
or safety problems that could negatively impact complainants, the final
regulations revise this provision to require that the written
determination state whether remedies will be provided to a complainant;
the nature of such remedies can then be discussed separately between
the complainant and the Title IX Coordinator. The final regulations
also add Sec. 106.45(b)(7)(iv) to state that the Title IX Coordinator
is responsible for the effective implementation of remedies.
Changes: We have revised Sec. 106.45(b)(7)(iii) such that
responsibility determinations will become final either on the date the
recipient simultaneously provides the written determination of the
appeal result to the parties, or the date on which an appeal is no
longer timely if neither party appeals. We have revised Sec.
106.45(b)(7)(ii)(E) to state that while the written determination must
include ``any sanctions the recipient imposes on the respondent,'' the
written determination must only state ``whether remedies designed to
restore or preserve equal access to the recipient's education program
or activity will be provided by the recipient to the complainant.''
(Emphasis added.) We also add Sec. 106.45(b)(7)(iv) to state that the
Title IX Coordinator is responsible for the effective implementation of
remedies.
[Sec. 106.45(b)(7)(iv) Title IX Coordinator Responsible for Effective
Implementation of Remedies: Addressed Under Sec. 106.45(b)(7)(iii)]
Transcript Notations
Comments: Some commenters expressed concern about harms to the
education, career, well-being, and lives of students whose transcripts
are marked as responsible for sexual misconduct. Several commenters
referenced the notation as a ``black mark'' on a student's record and
asserted that it is overly stigmatizing or punitive, and imposes
permanent barriers to success in one's education and career. One
commenter, for example, noted the damage of respondents having to
disclose such records to apply to graduate school, to receive a
professional license, or to potential employers, which risks being
denied admission, disciplined, or suspended from one's professional
practice, as well as a stain on one's personal relationships and
reputation. Several commenters emphasized their concerns about such
transcript notations being imposed without due process protections or
using a low standard of evidence. Another commenter asserted that the
records have no predictive value, would not prevent crimes even if
shared, are often inaccurate or misleading (such as recording both an
unwanted touch and rape as sexual misconduct), and create a high
financial burden to clearing one's name through litigation that only
well-off families can afford. Similarly, another commenter asserted
that expunging disciplinary records would significantly improve the
lives of respondents while imposing minimal costs or administrative
burdens on schools.
A number of commenters suggested mechanisms be added to the final
regulations for removing sexual misconduct notations or for expunging
such records so that the students involved could clear their names and
reputations. Several commenters suggested expunging records after a
certain time period, such as after a sanction has been served or after
a certain number of years. Other commenters suggested limiting
expungement to less egregious cases, such as in cases: Not involving
rape; with no criminal charges or findings; or for lower-level,
noncriminal, or non-violent cases not involving weapons, evidence of
force, incapacitation, multiple parties, or multiple witnesses. Several
commenters suggested allowing schools to expunge records of students
found responsible under withdrawn or disapproved OCR policies, which
commenters stated could be accomplished if the Department would express
to recipients that the Department will not penalize a recipient that
chooses to re-open and reconsider closed cases.
One commenter suggested deeming a school in violation of Title IX
for not removing a notation based on flawed prior proceedings or for
refusing to provide continuing enrollment at an institution if a
student does not proceed with a Title IX investigation and hearing that
lacks fundamental safeguards; this commenter asserted that schools have
used flawed procedures as a result of the Department's withdrawn 2011
Dear Colleague Letter. Another commenter proposed allowing transcript
notations only in the most egregious cases and that used a clear and
convincing evidence standard, allowed cross-examination, and gave the
accused a chance to help select the trier of fact.
Some commenters provided other points of view. A few expressed
concerns that individuals found responsible for sexual misconduct could
transfer to other educational institutions that have no awareness of
such misconduct. One such commenter proposed mandating that Title IX
findings be shared between universities to help them avoid hiring
sexual harassers. Another commenter, a State's attorney general, urged
the Department not to restrict schools from being more aggressive in
addressing sexual harassment, citing their State law requiring
transcript notations for respondents who are suspended, dismissed, or
who withdraw while under investigation for sexual assault.
Discussion: The Department understands the concerns that commenters
raise about transcript notations, the value of these transcript
notations, and the impact that these transcript notations may have on a
respondent's future educational and career opportunities. The
Department also appreciates the concerns of other commenters that
individuals found responsible for sexual misconduct could transfer to
other educational institutions that have no awareness of such
misconduct. The Department intentionally did not take a position in the
NPRM on transcript notations or the range of possible sanctions for a
respondent who is found responsible for sexual harassment. The
Department does not wish to dictate to recipients the sanctions that
should be imposed when a respondent is found responsible for sexual
harassment as each formal complaint of sexual harassment presents
unique facts and circumstances. As previously stated, the Department
believes that teachers and local school leaders with unique knowledge
of the school climate and student body, are best positioned to make
disciplinary decisions. If a respondent determines that a school is
discriminating against the respondent based on sex with respect to a
sanction such as a transcript notation, then a respondent may be able
to challenge such a discriminatory practice through a recipient's
procedures under Sec. 106.8(c) or through filing a complaint with OCR.
We do not wish to deem a school in violation for a school's conduct
prior to the effective date of these final regulations, including
conduct such as not removing a notation based on a prior proceeding
that lacked due process or a school's past refusal to provide
continuing enrollment at a postsecondary institution if a student does
not proceed with a Title IX investigation and hearing that lacks
[[Page 30395]]
fundamental safeguards. These final regulations will apply
prospectively to give recipients adequate notice of the standards that
apply to them. The Department shares some of the concerns that the
commenter has about the 2011 Dear Colleague Letter, and the Department
has withdrawn the 2011 Dear Colleague Letter.\1491\
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\1491\ U.S. Dep't. of Education, Office for Civil Rights, Dear
Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
---------------------------------------------------------------------------
The Department understands the commenter's concerns that
respondents who have been found responsible for sexual harassment may
transfer to another institution or be hired by another institution and
declines to require that institutions share the result of a Title IX
investigation or proceeding with other institutions. Requiring such
disclosure of personally identifiable information from a student's
education record outside the elementary or secondary school or
postsecondary institution may require institutions to violate FERPA,
and its implementing regulations. These final regulations are
consistent with FERPA, and the Department does not wish to impose any
requirements that violate FERPA.
As at least one commenter stated, some States have adopted laws
concerning transcript notations in the context of sexual harassment,
and the Department's approach does not present any conflict with these
State laws. The Department's policy aligns with the holding of the
Supreme Court in Davis that courts must not second guess recipients'
disciplinary decisions.\1492\ Where a respondent has been found
responsible for sexual harassment, any disciplinary sanction decision
rests within the discretion of the recipient, although the recipient
must also provide remedies, as appropriate, to the complainant designed
to restore or preserve the complainant's equal educational
access.\1493\
---------------------------------------------------------------------------
\1492\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646
(1999) (recognizing school officials' ``comprehensive authority'' to
control student conduct subject to constitutional limitations)
(internal citation omitted).
\1493\ Section 106.45(b)(1)(i).
---------------------------------------------------------------------------
The Department also appreciates the concern that transcript
notations may be imposed without adequate due process protections or a
low standard of evidence. In response to these concerns, the Department
revised Sec. 106.44(a) to provide that an equitable response for a
respondent means a grievance process that complies with Sec. 106.45
before the imposition of any disciplinary sanctions or other actions
that are not supportive measures, as defined in Sec. 106.30. Although
the Department will not interfere with the recipient's discretion in
imposing an appropriate sanction, the Department requires that a
respondent receive a grievance process with the fulsome due process
protections in Sec. 106.45 before any sanctions are imposed.
Accordingly, a recipient will be held in violation of these regulations
for failing to proceed with a Title IX investigation and hearing that
lacks fundamental safeguards. These final regulations provide that a
recipient may use either a preponderance of the evidence standard or a
clear and convincing evidence standard and must apply the same standard
of evidence for complaints against students as it does for complaints
against employees, including faculty.\1494\ If a recipient chooses to
use a preponderance of the evidence standard, then the recipient must
carefully consider whether the sanction of a transcript notation is
appropriate under Federal case law. As noted in Sec. 106.6(d)(2),
nothing in these final regulations deprives 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.
---------------------------------------------------------------------------
\1494\ Section 106.45(b)(1)(vii); Sec. 106.45(b)(7)(i).
---------------------------------------------------------------------------
The Department also appreciates the comments regarding the
expungement of records. The Department did not address expungement in
its proposed regulations and declines to do so here. The concept of
expungement in the context of an education program or activity appears
novel. A recipient may choose to have an expungement process that
removes a sanction or result of a hearing or appeal from a respondent's
official academic or disciplinary record at the school or institution
if a respondent is found not responsible after a hearing or an appeal.
A recipient, however, must retain certain records of a sexual
harassment investigation for at least seven years under Sec.
106.45(b)(10), even if the recipient has a process for expungement. As
explained earlier in this preamble, this seven-year period aligns with
the record retention period in the Department's regulations,\1495\
which is important as the definitions for sexual assault, dating
violence, domestic violence, and stalking from the regulations
implementing the Clery Act are part of the definition of sexual
harassment in Sec. 106.30. The Department will not dictate how
recipients must treat these records after seven years because
recipients may have other obligations that require them to preserve the
records for a longer period of time such as the obligation to preserve
records for litigation. Recipients, however, may choose to destroy
records after this seven-year retention period. The Department notes
that these final regulations, including the seven-year retention
period, apply prospectively only.
---------------------------------------------------------------------------
\1495\ 34 CFR 668.24(e)(2)(ii); see Dep't. of Education, Office
of Postsecondary Education, The Handbook for Campus Safety and
Security Reporting 9-11 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
---------------------------------------------------------------------------
Just as the Department is not dictating when and whether a
recipient may destroy records after the seven-year retention period,
the Department will not dictate when and whether recipients may destroy
records of respondents found responsible for sexual harassment before
these final regulations become effective. As long as recipients adhere
to all other Federal retention requirements that the Department
imposes, the Department will not interfere with a recipient's decision
to expunge records of responsibility determinations made under prior
OCR policies, irrespective of whether these policies were rescinded.
Recipients, however, should be mindful of adhering to any retention
requirements in State law and in their own policies. Recipients also
must not treat or categorize records in a manner that results in
discrimination based on sex under the Department's regulations. In
other words, a recipient cannot treat people differently on the basis
of their sex with respect to records pertaining to sexual harassment.
Changes: The Department revised Sec. 106.44(a) to provide that an
equitable response for a respondent means a grievance process that
complies with Sec. 106.45 before the imposition of any disciplinary
sanctions or other actions that are not supportive measures, as defined
in Sec. 106.30.
Appeals
Section 106.45(b)(8) Appeals
Comments: A number of commenters supported equal appeal rights for
both complainants and respondents because they believe it will bring
campus procedures in line with the requirements of due process, First
Amendment free speech rights, established case law, and existing
legislation. Commenters also argued that equal appeal rights will
reduce litigation by reducing the abuses of Title IX procedures and
helping to ensure accuracy. Some commenters argued that the proposed
regulations promote fairness and push back on misguided efforts to
micromanage the lives of students. Commenters stated that many
institutions may not be equipped to decide whether to offer an appeal,
or
[[Page 30396]]
that institutions may have a conflict of interest, and that the
proposed regulations balance the complexities of the modern education
environment. Some commenters shared personal stories about how they
have benefitted from attending institutions that offered appeal rights
or, conversely, about how costly it was to overturn a denial of due
process at institutions that did not offer appeal rights. Some
commenters supported the NPRM because denying appeal rights to
complainants would cause further trauma, while offering them the option
to appeal will provide needed support. Other commenters argued that the
NPRM promotes fair and impartial procedures that will protect justice
and civil rights. Commenters supported giving both parties the
opportunity to submit a written statement supporting or challenging the
outcome.
Discussion: The Department appreciates the general support received
from commenters regarding our approach to offering appeal rights to
both parties in Title IX proceedings, and the urging of many commenters
to require recipients to offer appeals. The Department is persuaded by
commenters that recipient-level appeals should be mandatory and offered
equally to both parties because this will make it more likely that
recipients reach sound determinations, giving the parties greater
confidence in the ultimate outcome. Complainants and respondents have
different interests in the outcome of a sexual harassment complaint.
Complainants ``have a right, and are entitled to expect, that they may
attend [school] without fear of sexual assault or harassment,'' while
for respondents a ``finding of responsibility for a sexual offense can
have a lasting impact on a student's personal life, in addition to [the
student's] educational and employment opportunities[.]'' \1496\
Although these interests may differ, each represents high-stakes,
potentially life-altering consequences deserving of an accurate
outcome.\1497\ Accordingly, the Department has revised Sec.
106.45(b)(8) to require recipients to offer both parties equal appeal
rights on three bases: procedural irregularity, newly discovered
evidence, and bias or conflict of interest. This provision further
states that recipients may offer appeals on additional grounds but must
do so equally for both parties. The revised provision also expressly
permits both parties to appeal a recipient's dismissal of a formal
complaint (or allegations therein), whether the dismissal was mandatory
or discretionary under Sec. 106.45(b)(3). We have also removed the
limitation that precluded a complainant from appealing the severity of
sanctions; the final regulations leave to a recipient's discretion
whether severity or proportionality of sanctions is an appropriate
basis for appeal, but any such appeal offered by a recipient must be
offered equally to both parties.
---------------------------------------------------------------------------
\1496\ Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 403 (6th
Cir. 2017).
\1497\ Id. at 404 (recognizing that the complainant ``deserves a
reliable, accurate outcome as much as'' the respondent).
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.45(b)(8) such that recipients
must offer both parties an appeal from determinations regarding
responsibility, or from a recipient's dismissal of a formal complaint
or any allegations contained in a formal complaint. Recipients must
offer appeals on at least the three following bases: (1) Procedural
irregularity that affected the outcome; (2) new evidence that was not
reasonably available when the determination of responsibility was made
that could affect the outcome; or (3) the Title IX Coordinator,
investigator, or decision-maker had a general or specific conflict of
interest or bias against the complainant or respondent that affected
the outcome. Recipients may offer appeals equally to both parties on
additional bases. Complainants and respondents have equal appeal rights
under the final regulations; we have removed the NPRM's limitation on
complainants' right to appeal sanctions.
Comments: Some commenters argued that the proposed regulations do
not reflect the high ideals we should have for education. Other
commenters expressed concern about the application of Sec.
106.45(b)(8), arguing that appeals procedures will not be applied
equally across the country and that appeals should be made mandatory
instead. Other commenters suggested that appeals should only be granted
when parties can demonstrate specific rights that were violated by the
proceedings. Other commenters suggested adding greater due process
protections, such as barring appeals of any not guilty finding, in
accordance with the double-jeopardy principle enshrined in the
Constitution and applied in criminal proceedings. Commenters opposed
Sec. 106.45(b)(8) because many institutions already offer equal
appeals to both parties.
Discussion: The Department is persuaded by commenters who asserted
that appeal rights should be mandatory for Title IX proceedings. We
have revised Sec. 106.45(b)(8) to require recipients to offer both
parties the opportunity to appeal a determination regarding
responsibility on any of three bases, and equal opportunity to appeal a
recipient's decision to dismiss a formal complaint or an allegation
contained in a formal complaint.\1498\ This will help to ensure that
appeal rights are applied equally by recipients across the country,
increasing the legitimacy of recipients' determinations regarding
responsibility and ensuring that recipients have an opportunity to
self-correct erroneous outcomes. The final regulations clearly specify
which rights or interests could justify an opportunity to appeal;
namely, where the outcome was affected by procedural irregularity,
newly discovered evidence, or conflict of interest or bias in key
personnel involved with the investigation and adjudication of the case.
The Department also believes that giving recipients flexibility and
discretion in crafting their Title IX processes is important, and we
believe that recipients are in best position to know the unique values
and interests of their educational communities. For this reason, Sec.
106.45(b)(8) grants recipients discretion to offer appeals on
additional grounds, so long as such additional bases for appeal are
offered equally to both parties.
---------------------------------------------------------------------------
\1498\ Section 106.45(b)(3)(i) (addressing mandatory
dismissals); Sec. 106.45(b)(3)(ii) (addressing discretionary
dismissals).
---------------------------------------------------------------------------
We respectfully disagree with the commenters who argued that the
final regulations should prohibit appeals of not responsible
determinations because of double jeopardy concerns. As discussed above,
we believe that both respondents and complainants face potentially
life-altering consequences from the outcomes of Title IX proceedings.
As such, it is important to protect complainants' right to appeal as
well as respondents' right to appeal. We believe the final regulations
adequately protect both parties' interests in a fair, accurate outcome
by requiring recipients to offer both parties the opportunity to appeal
on at least three specific bases; requiring that appeal decision-makers
be different than the Title IX Coordinator, investigator(s), or
decision-maker(s) that reached the initial determination; requiring
appeal decision-makers to satisfy the robust anti-bias and training
requirements of Sec. 106.45(b)(1)(iii); giving both parties a
meaningful and equal opportunity to submit written statements
supporting or challenging the outcome; and requiring written
determinations explaining the appeal result and rationales to be given
to both parties.
Changes: None.
[[Page 30397]]
Comments: Some commenters expressed concern that Sec. 106.45(b)(8)
was not drafted with the victim in mind. Commenters opposed restricting
the complainant's right to appeal because equal appeal rights are
supported by experts, or because the complainant may have new evidence
and restricting their appeal rights will put the integrity of the
proceeding at risk. Commenters argued that appeals for only the
respondent are not needed because false accusations are rare. These
commenters also believed that approach proposed in the NPRM offers
unequal appeal rights, which reinforces sex stereotypes, can be a form
of sex bias, and can signal that sexual harassment is not treated
seriously.
Some commenters opposed restricting the complainant's right to
appeal because the Secretary spoke in favor of equal appeals. Other
commenters argued that appeals are a guaranteed right for any
individual who is participating in a federally-funded program and that
complainants should not be restricted at all in their grounds for
appeals. Commenters argued that a school's grievance procedure should
be compared to an administrative process rather than a criminal
process, and that appeals ensure an additional layer of review that is
needed when fact-finders may not be sympathetic to claims that access
to educational opportunities has been impaired. Some commenters
expressed concern that the proposed appeal procedures would disrupt the
balance of rights in campus procedures and, by treating sexual
harassment uniquely, will cause sexual harassment claims to be received
with skepticism.
Discussion: The Department has revised many provisions of the final
regulations with the well-being of victims in mind, including revisions
to Sec. 106.45(b)(8) that require recipients to offer appeals equally
to both parties and remove the restriction in the NPRM on complainants'
ability to appeal a determination based on the severity of the
sanctions imposed on the respondent. The Department is persuaded by
many commenters' concerns that the right to appeals should be mandatory
and equally available to both parties. We have revised Sec.
106.45(b)(8) to provide equal appeal rights to both parties and include
robust protections such as anti-bias and training requirements for
appeal decision-makers, strict separation of the appeal decision-makers
from the individuals who investigated and adjudicated the underlying
case to reinforce independence and neutrality, and retain the proposed
provision's requirements allowing both parties equal opportunity to
participate in the appeals process through submitting written
statements, and requiring reasoned written decisions describing the
appeal results to be provided to both parties. Under the final
regulations, the appeal rights of complainants and respondents are
identical. Appeals may be an important mechanism to reduce the
possibility of unfairness or to correct potential errors made in the
initial responsibility determination.
As a general principle, we agree with commenters that one of the
goals of these regulations should be to preserve recipients' autonomy
to craft procedures by which they address issues of sexual misconduct.
However, the Department also believes that the requirements contained
in the final regulations, including Sec. 106.45(b)(8) on appeals,
further the twin purposes of the Title IX statute. As the Supreme Court
has stated, the objectives of Title IX are two-fold: first, to ``avoid
the use of Federal resources to support discriminatory practices'' and
second, to ``provide individual citizens effective protection against
those practices'' \1499\ The Department is persuaded by commenters who
urged that recipient-level appeals are not only a best practice, but
should be required equally for both parties, to provide additional,
effective protections against a recipient reaching an unjust or
inaccurate outcome in Title IX sexual harassment proceedings.
---------------------------------------------------------------------------
\1499\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters argued that granting the complainant a
right to appeal will adversely affect the proceedings by empowering
institutions to be advocates for complainants. Commenters asserted that
institutions can offer supportive measures to complainants such that
the benefits to the complainant of being able to appeal a finding of
non-responsibility are not sufficient to outweigh the respondent's
interest in not having to face the same accusation more than once.
Commenters also argued that the Department has not offered enough
guidance on how institutions can offer complainants appeals while
preserving the presumption of innocence.
Discussion: We believe that granting appeal rights to complainants
will not have the effect of turning recipients into advocates for
complainants, and granting those same appeal rights to respondents does
not turn recipients into advocates for respondents, either. The
Department wishes to emphasize that supportive measures, such as mutual
no-contact orders or academic course adjustments, remain available to
help restore or preserve either party's equal access to education and
that such measures may continue in place throughout an appeal
process.\1500\ We believe that maintaining a level of equal educational
access while the recipient takes an additional step (assuming one or
both parties decide to appeal) contributes to the benefit of requiring
equal appeal rights, so that recipients may self-correct erroneous
outcomes, better ensuring that the Sec. 106.45 grievance process as a
whole leads to reliable determinations regarding responsibility. As a
result, we have revised Sec. 106.45(b)(8) to require recipients to
offer both parties equal appeal rights on bases of procedural
irregularity, newly discovered evidence, or bias or conflict of
interest; if such grounds exist, a party should be able to appeal and
ask the recipient to revisit the outcome so that the recipient has the
opportunity to correct the outcome, whether such an improvement in the
accuracy of the outcome is for the complainant's benefit or the
respondent's benefit. The Department notes that under the final
regulations, whether the parties can appeal based solely on the
severity of sanctions is left to the recipient's discretion, though if
the recipient allows appeals on that basis, both parties must have
equal opportunity to appeal on that basis.
---------------------------------------------------------------------------
\1500\ We reiterate that as to complainants, revised Sec.
106.44(a) requires recipients to offer supportive measures to
complainants, and the definition of supportive measures in Sec.
106.30 states that supportive measures may be available for either
party.
---------------------------------------------------------------------------
The Department does not believe that this approach to appeals
constitutes double jeopardy unfair to respondents; the Department
reiterates that the Title IX grievance process differs in purpose and
procedure from a criminal proceeding, and the Department is not
persuaded that a fair process under Title IX requires protection
against ``double jeopardy'' the way that the U.S. Constitution grants
such protection to criminal defendants. The Department acknowledges
that respondents face a burden if a complainant appeals a determination
of non-responsibility, but the Department believes it is important for
recipients to revisit determinations that were reached via alleged
procedural irregularity or bias or conflict of interest affecting the
outcome, or where newly discovered evidence may affect the outcome. The
Department notes that Sec. 106.45(b)(1)(v) requires recipients to
conclude the appeal process under designated, reasonably prompt time
frames, and thus the end result is that
[[Page 30398]]
the recipient's final determination in a Title IX grievance process is
both accurate and reasonably prompt.
With respect to commenters' request that the Department offer
additional guidance on how recipients may offer appeals to complainants
while also respecting the presumption of non-responsibility contained
in Sec. 106.45(b)(1)(iv), we believe that nothing about Sec.
106.45(b)(1)(iv), or the underlying principles justifying the
presumption of non-responsibility, conflicts with the equal appeal
rights that Sec. 106.45(b)(8) of the final regulations offers to both
complainants and respondents. As discussed in the ``Section
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of the
``General Requirements for Sec. Grievance Process'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section of
this preamble, the presumption of non-responsibility is intended to
ensure that recipients do not treat respondents as responsible prior to
ultimate resolution of the grievance process. For the reasons discussed
above, asking recipients to offer appeals where the outcome may have
been affected by procedural irregularity, bias or conflict of interest,
or where newly discovered evidence becomes available helps ensure that
the final determination in each particular case is factually accurate,
because a proceeding infected by such defects may have resulted in an
erroneous outcome to the prejudice of the complainant or the
respondent.
Changes: None.
Comments: Some commenters argued that unequal appeal rights will
have an adverse effect on campus safety. Commenters cited the high
rates of sexual assault and harassment and expressed fear about
attending campus if these regulations take effect. Commenters expressed
concern that victims will experience further trauma and not be able to
receive an education if recipients cannot punish their attacker.
Discussion: In response to commenters' concerns that any inequality
in the appeals provision could undermine the safety and security of
recipients' educational communities, the Department has revised Sec.
106.45(b)(8) to require recipients to offer appeals to both
complainants and respondents on three specified bases, and if a
recipient chooses to offer appeals on additional bases such appeals
also must be offered equally to both parties. As discussed above, the
Department believes that by offering the opportunity to appeal to both
parties, recipients will be more likely to reach sound determinations,
giving the parties greater confidence in the ultimate outcome and
better ensuring that recipients appropriately respond to sexual
harassment for the benefit of all students and employees in recipients'
education programs and activities.
Changes: None.
Comments: Some commenters argued that the NPRM's appeal provisions
conflicted with Federal law, including the Campus SAVE Act, because as
proposed, Sec. 106.45(b)(8) gave unequal appeal rights to the parties.
Commenters also asserted that the Department mischaracterized case law
in the NPRM's preamble to purportedly justify imposing unequal appeal
rights on the parties. Some commenters contended the NPRM's appeal
provisions conflicted with OCR's past enforcement practices.
Discussion: In response to well-taken arguments made by commenters,
the Department is persuaded that the final regulations, unlike the
NPRM, should require recipients to give equal appeal rights to the
parties. That is why, as discussed above, the limitation contained in
the NPRM that complainants could not appeal sanction decisions has been
removed from the final regulations. We are leaving recipients with the
discretion to permit both parties to appeal sanctions, provided that
such an appeal must be offered equally to both parties. We therefore
decline to address the contention raised by some commenters that the
approach to appeal rights contained in the NPRM may have conflicted
with Federal law such as the Campus SAVE Act, or with past Department
enforcement practices.
The Department believes that by offering appeals to both
complainants and respondents on an equal basis, recipients will be more
likely to reach sound determinations, giving the parties greater
confidence in the ultimate outcome. Both complainants and respondents
have significant interests in the outcomes of these proceedings; the
consequences of a particular determination of responsibility or
sanction can be life-altering for both parties and thus each
determination must be factually accurate. The stakes are simply too
high in the context of sexual misconduct for appeals not to be part of
the grievance process; as many commenters pointed out, a recipient-
level appeal gives the recipient an opportunity to ensure factual
accuracy in determinations by permitting either party to bring to the
recipient's attention improper factors that affected the initial
determination. The Department is persuaded by commenters who urged the
Department to recognize that an error or bias affecting the initial
determination regarding responsibility is as likely to negatively
affect a complainant as a respondent, and thus the equality of both
parties' right to appeal is critical to the parties' sense of justice
and confidence in the outcome. Furthermore, a procedural irregularity
that affected the outcome, newly discovered evidence that may have
affected the outcome, or bias or conflict of interest that affected the
outcome, each represents an error that, if left uncorrected by the
recipient, indicates that the determination was inaccurate, and thus
that sexual harassment in the recipient's education program or activity
has not been identified and appropriately addressed. Appeals enable
recipients to correct errors in the adjudicative process, and may also
reduce parties' reliance on OCR or private litigation to challenge the
outcomes thereby yielding just outcomes more quickly than when a party
must seek justice in a process outside the recipient's own Title IX
grievance process. The Department has therefore revised Sec.
106.45(b)(8) to ensure that both parties have equal right to appeal by
asking recipients to reconsider determinations (using a different
decision-maker from any person who served as the Title IX Coordinator,
investigator, or decision-maker reaching the initial determination)
where procedural irregularity, newly discovered evidence, or bias or
conflict of interest affected the outcome.
The same reasoning applies to a recipient's dismissal of a formal
complaint, or allegations therein; where a recipient's dismissal is in
error (for example, the recipient incorrectly decided that the
underlying alleged incident did not occur in the recipient's education
program or activity leading to mandatory dismissal for Title IX
purposes, or the recipient's discretionary dismissal was based on
incorrect facts), 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 formal complaint that
needs to be resolved in order to identify and remedy Title IX sexual
harassment. Thus, we have also revised this provision to expressly
allow both parties the equal right to appeal a recipient's mandatory or
discretionary dismissals under Sec. 106.45(b)(3)(i)-(ii).
Changes: None.
Comments: Some commenters opposed restricting complainants' rights
to appeal because of the effect this provision would have on sanctions
[[Page 30399]]
issued during the grievance process. Commenters argued that respondents
are often given light sanctions and are permitted to remain at the
institution, adversely impacting complainants' access to education.
They contended that it is unfair to allow one party to appeal
sanctions, but not the other party. Commenters asserted that
complainants should have a say in the sanctions delivered to the
respondents. Other commenters argued that complainants should be
allowed to appeal sanctions because they will have a strong interest in
doing so, while respondents should not be allowed to appeal sanctions
because they would only do so out of self-interest.
Discussion: As discussed above, and in response to well-taken
concerns raised by commenters, the Department has decided to remove the
limitation contained in the NPRM that would have prevented complainants
from appealing recipients' sanction decisions. Under Sec. 106.45(b)(8)
of the final regulations, recipients have the discretion to permit
parties to appeal sanctions. The Department wishes to clarify that if
recipients decide to offer appeal rights regarding sanctions, then both
complainants and respondents must have the same rights to appeal. We
agree with commenters that it would be unfair and run counter to the
spirit of Title IX to permit complainants to appeal sanction decisions
but not permit respondents to appeal sanction decisions, and vice
versa, and as such if a recipient allows appeals on the basis of
severity of sanctions that appeal must be offered equally to both
parties.
Changes: None.
Comments: Some commenters argued that the Department should require
institutions to offer appeals. They argued that mandated appeals will
ensure uniformity, reduce litigation, and will be necessary due to the
decreased standard of liability. Other commenters expressed concern
that offering complainants the right to appeal would violate due
process. They argued that a false finding of responsibility will result
in life-altering stigma and harm to respondents and that their interest
in avoiding double jeopardy is significant. Some commenters suggested
that if respondents are allowed to appeal, they should only be allowed
to appeal for blatant errors. Some commenters argued that Sec.
106.45(b)(8) was not clear that an appeals panel must be different from
the original panel. Commenters suggested that the Department ensure a
third-party appeals process to protect the fairness and independence of
the decisions on appeal.
Discussion: The Department is persuaded by the concerns raised by
commenters, and we note that Sec. 106.45(b)(8) of the final
regulations requires recipients to offer appeals equally to both
parties. Further, we acknowledge that being found responsible for
sexual misconduct under Title IX may carry a significant social stigma
and life-altering consequences that could impact the respondent's
future educational and economic opportunities. However, we also believe
that complainants have significant, life-altering interests at stake,
and that they ``have a right, and are entitled to expect, that they may
attend [school] without fear of sexual assault or harassment.'' \1501\
For these reasons, along with the centrality of appeals as a mechanism
for addressing potential unfairness or error in an adjudication, the
Department believes that appeal rights should be offered equally to
both complainants and respondents in recipients' Title IX proceedings.
Further, we believe that appeal rights for respondents should not be
limited to ``blatant errors,'' as suggested by one commenter. Instead,
the final regulations specify the bases upon which either party can
appeal, including procedural irregularity or bias or conflict of
interest in key personnel involved in the adjudicative process that
affected the outcome, or newly discovered evidence that would affect
the outcome. Moreover, we recognize the importance of granting
recipients flexibility and discretion in designing and implementing
their Title IX systems; the Department believes recipients are in best
position to know the unique needs and values of their educational
communities. For this reason, Sec. 106.45(b)(8) permits recipients to
offer appeals to both parties on additional bases in their discretion.
---------------------------------------------------------------------------
\1501\ Doe v. Univ. of Cincinnati, 872 F.3d 393, 403 (6th Cir.
2017).
---------------------------------------------------------------------------
With respect to ensuring that appeal decision-makers are different
individuals than investigators, Title IX Coordinators, or decision-
makers who rendered the initial determination regarding responsibility,
the Department agrees with commenters and therefore, Sec.
106.45(b)(8)(iii) makes it clear that the appeal decision-maker cannot
be the same person as the decision-maker below, or as the Title IX
Coordinator or investigator in the case. This ensures that the
recipient's appeal decision reviews the underlying case independently.
The Department also notes that appeal decision-makers must be free from
bias and conflicts of interest, and be trained to serve impartially, as
required under Sec. 106.45(b)(1)(iii).
We respectfully disagree with the commenters who argued that the
final regulations should prohibit appeals of not responsible
determinations because of double jeopardy concerns. As discussed above,
we believe that both respondents and complainants face potentially
life-altering consequences from the outcomes of Title IX proceedings.
As such, it is important to protect complainants' right to appeal as
well as respondents' right to appeal.
The Department does not believe that a third party independent from
the recipient would need to handle appeals to ensure impartiality and
fairness. Rather, the robust anti-bias and training requirements of
Sec. 106.45(b)(1)(iii) that apply to appeal decision-makers, along
with the requirement contained in Sec. 106.45(b)(8)(iii) that the
appeal decision-maker must be a different person than the Title IX
Coordinator or any investigators or decision-makers that reached the
initial determination of responsibility, will help to ensure that
recipients' appeal processes are adequately independent and effective
in curing possible unfairness or error.
Changes: None.
Informal Resolution
Section 106.45(b)(9) Informal Resolution
Supporting and Expanding Informal Resolution
Comments: Some commenters appreciated the option of informal
resolution in the proposed rules for reasons that echoed one
commenter's assertions as follows: ``Restrictions on informal
resolution have had several problematic consequences. Would-be
complainants often declined to come forward with complaints because
they were offered only two roads forward: The full formal process
leading to possibly severe punishment for the respondent, or counseling
for themselves. These students often said: `I don't want the respondent
to be punished; I just want them to realize how bad this event was for
me.' Students fully prepared to confess, apologize, and take their
sanction were sometimes ground through the formal process for no good
reason. Additionally, often both parties would have preferred informal
resolution; a rule that pushed them to adopt an adversarial posture vis
a vis each other meant that the conflict persisted, and even escalated,
when it could have been settled.''
A number of commenters urged the Department to make informal
resolution
[[Page 30400]]
the default option for addressing sexual misconduct. One commenter
emphasized that sometimes alleged victims just want to be heard, that
confidential settlement conferences should be required before any
formal hearing process, and the final regulations should prohibit any
settlement mediator from being called as a witness in subsequent
proceedings. Another commenter argued that where the default option of
mediation fails, the parties should then turn to the court system. One
commenter suggested the Department place informal resolution near the
start of the final regulations to encourage its use. Several commenters
noted that informal resolution can empower victims and increase
flexibility to address unique situations; they argued that informal
resolution increases choice by allowing both parties to choose the
option that is right for them and that the Department should not
arbitrarily force them into a formal process. Commenters asserted that
confidential conversations between the parties can be ideal where there
is insufficient evidence to warrant investigation, or where there may
be confusion or misunderstanding as to what exactly happened between
the parties. One commenter asserted that it is inaccurate to call
mediation ``forced'' or ``unregulated'' because the NPRM imposes
important requirements on recipients' use of informal resolution and
recipients remain free to prohibit it. A few commenters contended that
informal resolution is more efficient than formal proceedings because
it is faster and less costly and parties do not need to hire expensive
attorneys.
Discussion: The Department appreciates the support from commenters
regarding informal resolution and agrees that, subject to limitations,
informal resolution may represent a beneficial outcome for both parties
superior to forcing the parties to complete a formal investigation and
adjudication process as the only option once a formal complaint has
raised allegations of sexual harassment. As discussed below, the
Department has made several changes to the informal resolution
provision in the final regulations to better address potential risks
while retaining the benefits that such an option may hold for parties
in particular cases.
As a general matter, informal or alternative dispute resolution
processes have become increasingly available throughout the American
legal system, in recognition of a variety of potential benefits (such
as shortening the time frames governing litigation, greater party
control over outcomes which may improve parties' sense of justice and
increase compliance with outcomes, and yielding remedies more
customized to the needs of unique situations) of alternative dispute
resolution as a substitute for the adversarial process.\1502\
Alternative dispute resolution presents the same potential benefits for
sexual harassment cases as for other disputes.\1503\
---------------------------------------------------------------------------
\1502\ E.g., Marjorie A. Silver, The Uses and Abuses of Informal
Procedures in Federal Civil Rights Enforcement, 55 George Wash. L.
Rev. 482, 493 (1987) (noting that the legal system has ``witnessed a
massive movement towards the use of ADR procedures'' to achieve
fairness and justice while relieving overburdened court systems and
providing access to resolutions for parties who find litigation
cost-prohibitive, and noting that ADR gives greater autonomy to
parties ``by placing control over the dispute in their hands'');
Developments, The Paths of Civil Litigation: ADR, 113 Harv. L. Rev.
1851, 1851 (2000) (referring to ADR as a ``virtual revolution'' in
the legal system); id. at 1852-53 (``In the 1970s, jurists began to
voice concerns about the rising costs and increasing delays
associated with litigation, and some envisioned cheaper, faster,
less formal, and more effective dispute resolution in such
alternatives as arbitration and mediation. As the use of ADR
mechanisms grew, proponents viewed them as promising vehicles for an
array of agendas. . . . In the 1980s, social scientists, game
theorists, and other scholars showed how ADR mechanisms could
facilitate settlement by dealing proactively with heuristic biases
through the strategic imposition of a neutral third party.
Meanwhile, process-oriented ADR advocates emphasized that problem-
solving approaches would yield remedies better tailored to parties'
unique needs and that the more direct involvement of disputants
would encourage greater compliance with outcomes and help rebuild
ruptured relationships.'') (internal citations omitted).
\1503\ E.g., Barbara J. Gazeley, Venus, Mars, and the Law: On
Mediation of Sexual Harassment Cases, 33 Willamette L. Rev. 605
(1997) (notwithstanding ``a perception'' that sexual harassment,
rape, and domestic violence cases ``uniformly involve a severe
imbalance of power, rendering the woman incapable of participating
effectively in mediation'' many sexual harassment situations benefit
from mediation where an ``educative approach, which restores both
parties' dignity, can be much more satisfying to all concerned'');
Carrie A. Bond, Note, Shattering the Myth: Mediating Sexual
Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489 (1997)
(advocating for greater use of mediation in the context of sexual
harassment).
---------------------------------------------------------------------------
We acknowledge the suggestions made by some commenters that the
Department go further to promote informal resolution as a means of
addressing sexual misconduct under Title IX, such as by making informal
resolution a default option or placing the informal resolution
provisions near the start of the final regulations. As recognized by
many commenters, the Department believes that informal resolution may
empower complainants and respondents to address alleged sexual
misconduct incidents through a process that is most appropriate for
them, and that it is inaccurate to call informal resolution mechanisms
such as mediation ``forced'' or ``unregulated.'' Informal resolution
also enhances recipient and party autonomy and flexibility to address
unique situations. However, the Department also believes that the more
formal grievance process under Sec. 106.45 may be an appropriate
mechanism to address sexual misconduct under Title IX in many
circumstances because these provisions establish procedural safeguards
providing a fair process for all parties, where disputed factual
allegations must be resolved. Furthermore, the existence of a formal
grievance process provides parties (where a recipient has chosen to
offer informal resolution processes) with expanded choice in the form
of alternatives that will best meet the needs of parties involved in a
particular situation; the Department does not believe that requiring
informal resolution to be attempted prior to engaging the formal
grievance process results in the parties having genuine choice and
control over the process. Because informal resolution, as opposed to
formal investigation and adjudication, relies on the voluntary
participation of both parties, the Department declines to require or
allow informal resolution processes to be a ``default.'' The
``default'' is that a formal complaint must be investigated and
adjudicated by the recipient; within the parameters of Sec.
106.45(b)(9) a recipient may choose to offer the parties an informal
process that resolves the formal complaint without completing the
investigation and adjudication, but such a result depends on whether
the recipient determines that informal resolution may be appropriate
and whether both parties voluntarily agree to attempt informal
resolution. To clarify the intent of this provision, we have revised
Sec. 106.45(b)(9) to state that recipients may not offer informal
resolution unless a formal complaint has been filed.
At the same time, the Department is persuaded by some commenters
who expressed concern that it may be too difficult to ensure that
mediation or other informal resolution is truly voluntary on the part
of students who report being sexually harassed by a recipient's
employee, due to the power differential and potential for undue
influence or pressure exerted by an employee over a student. For this
reason, the Department has revised Sec. 106.45(b)(9)(iii) to state
that recipients cannot offer an informal resolution process to resolve
formal complaints alleging that an employee sexually harassed a
student.
With respect to informal resolution facilitators potentially
serving as witnesses in subsequent formal
[[Page 30401]]
grievance processes, we leave this possibility open to recipients. If
recipients were to accept such witnesses, then the Department would
expect this possibility to be clearly disclosed to the parties as part
of the Sec. 106.45(b)(9)(i) requirement in the final regulations to
provide a written notice disclosing any consequences resulting from
participating in the informal resolution process, including the records
that will be maintained or could be shared.
Changes: The Department has made several changes to the informal
resolution provision that we proposed in the NPRM. Individuals
facilitating informal resolution must be free from conflicts of
interest, bias, and trained to serve impartially.\1504\ Informal
resolution processes must have reasonably prompt time frames.\1505\ The
initial written notice of allegations sent to both parties must include
information about any informal resolution processes the recipient has
chosen to make available.\1506\ In the informal resolution provision
itself, Sec. 106.45(b)(9), the final regulations now provide that
recipients are explicitly prohibited from requiring students or
employees to waive their right to a formal Sec. 106.45 grievance
process as a condition of enrollment or employment or enjoyment of any
other right; recipients are explicitly prohibited from requiring the
parties to participate in an informal resolution process; a recipient
may not offer informal resolution unless a formal complaint is filed;
either party has the right to withdraw from informal resolution and
resume a Sec. 106.45 grievance process at any time before agreeing to
a resolution; and recipients are categorically prohibited from offering
or facilitating an informal resolution process to resolve allegations
that an employee sexually harassed a student.
---------------------------------------------------------------------------
\1504\ Section 106.45(b)(1)(iii).
\1505\ Section 106.45(b)(1)(v).
\1506\ Section 106.45(b)(2)(i).
---------------------------------------------------------------------------
Terminology Clarifications
Comments: A number of commenters expressed concerns regarding the
terminology surrounding informal resolution in the NPRM. Commenters
stated that calling this process ``informal'' can cause recipients to
underestimate the training, skill, and preparation necessary to
successfully execute this resolution method, and it might also lead
recipients to treat sexual misconduct claims with greater skepticism
than other misconduct. Several commenters argued that mediation is
inappropriate in sexual misconduct cases because it suggests both
parties are at fault. Many commenters contended that mediation is
categorically inappropriate in sexual assault cases, even on a
voluntary basis, because of the power differential between assailants
and victims, the potential for re-traumatization by having to face the
attacker again, the implication that survivors share partial
responsibility for their own assault, the seriousness of the offense,
and the inadequate punishment imposed on offenders. Other commenters,
however, argued that informal resolution of disputed sexual harassment
allegations often provides both parties with a preferable outcome to
formal adjudication procedures. Some commenters suggested that the
Department clearly define what ``informal resolution'' is in the final
regulations and also explain the relationship and possible overlap
between informal resolution and the ``supportive measures''
contemplated in the NPRM. One commenter asked whether the provisions
requiring written notice be provided to ``parties'' refers only to
complainants and respondents, or whether parents and/or legal guardians
would receive notice instead where the complainant and/or respondent is
a minor or legally incompetent person.
Discussion: It is not the intent of the Department in referring to
resolution processes under Sec. 106.45(b)(9) as ``informal'' to
suggest that personnel who facilitate such processes need not have
robust training and independence, or that recipients should take
allegations of sexual harassment less seriously when reaching a
resolution through such processes. Indeed, the Department acknowledges
the concerns raised by some commenters regarding the training and
independence of individuals who facilitate informal resolutions. In
response to these well-taken comments, we have extended the anti-
conflict of interest, anti-bias, and training requirements of Sec.
106.45(b)(1)(iii) to these personnel in the final regulations. The same
requirements that apply to Title IX Coordinators, investigators, and
decision-makers now also apply to any individuals who facilitate
informal resolution processes. Contrary to the claims made by some
commenters that mediation is categorically inappropriate, the
Department believes that recipients' good judgment and common sense
should be important elements of a response to sex discrimination under
Title IX.
The Department believes an explicit definition of ``informal
resolution'' in the final regulations is unnecessary. Informal
resolution may encompass a broad range of conflict resolution
strategies, including, but not limited to, arbitration, mediation, or
restorative justice. Defining this concept may have the unintended
effect of limiting parties' freedom to choose the resolution option
that is best for them, and recipient flexibility to craft resolution
processes that serve the unique educational needs of their communities.
With respect to the relationship between supportive measures and
informal resolution, the Department wishes to clarify that supportive
measures are designed to restore or preserve equal access to the
recipient's education program or activity without unreasonably
burdening the other party and without constituting punitive or
disciplinary actions including by protecting the safety of all parties
and the recipient's educational environment or deterring sexual
harassment. Unlike informal resolutions, which may result in
disciplinary measures designed to punish the respondent, supportive
measures must be non-disciplinary and non-punitive. Supportive measures
may include counseling, extensions of deadlines or other course-related
adjustments, modifications of work or class schedules, campus escort
services, mutual restrictions on contact between the parties, changes
in work or housing locations, leaves of absence, increased security and
monitoring of certain areas of the campus, and other similar measures.
Informal resolutions may reach agreements between the parties,
facilitated by the recipient, that include similar measures but that
also could include disciplinary measures, while providing finality for
both parties in terms of resolving allegations raised in a formal
complaint of sexual harassment. Because an informal resolution may
result in disciplinary or punitive measures agreed to by a respondent,
we have revised Sec. 106.45(b)(9) to expressly state that a recipient
may not offer informal resolution unless a formal complaint is filed.
This ensures that the parties understand the allegations at issue and
the right to have the allegations resolved through the formal grievance
process, and the right to voluntarily consent to participate in
informal resolution.
Furthermore, the Department wishes to clarify that where the
complainant or respondent is a minor or legally incompetent person,
then the party's parent or legal guardian will receive the required
written notice under Sec. 106.45(b)(9) of the final regulations. The
final regulations address the rights of parents and guardians in Sec.
106.6(g), which states that nothing in the final
[[Page 30402]]
regulations may be read in derogation of the legal rights of a parent
or guardian to act on behalf of an individual.
Changes: The Department has added Sec. 106.6(g) to acknowledge the
importance of the legal rights of parents or guardians to act on behalf
of individuals exercising Title IX rights or involved in Title IX
proceedings. We have also revised Sec. 106.45(b)(9) to state that no
recipient may require parties to participate in informal resolution,
and a recipient may not offer informal resolution unless a formal
complaint has been filed.
Written Notice Implications
Comments: One commenter expressed concern that the NPRM requires
written notice of the allegations provided to both parties before
informal resolution. At public institutions, written notice constitutes
a public record; this would frustrate the utility of informal
resolution as a confidential forum. The commenter argued that the
Department should either withdraw this requirement or instead extend a
privilege to records created in informal resolution.
Discussion: The Department acknowledges the confidentiality
concerns raised by some commenters regarding informal resolution.
Section 106.45(b)(9)(i) provides that the written notice given to both
parties before entering an informal resolution process must indicate
what records would be maintained or could be shared in that process.
Importantly, records that could potentially be kept confidential could
include the written notice itself, which would not become a public
record. The Department leaves it to the discretion of recipients to
make these determinations. The Department believes this requirement
effectively puts both parties on notice as to the confidentiality and
privacy implications of participating in informal resolution.
Recipients remain free to exercise their judgment in determining the
confidentiality parameters of the informal resolution process they
offer to parties.
Changes: None.
Voluntary Consent
Comments: Many commenters argued that the NPRM fails to ensure that
the parties' consent to informal resolution is truly voluntary.
Commenters argued that recipients may have perverse reputational and
monetary incentives to downplay sexual misconduct claims and push
parties to undergo informal resolution instead of lengthy, costly,
complex, and public formal proceedings. Commenters noted these perverse
incentives may be particularly strong where the respondent is a star
athlete or child of a major donor. Some commenters suggested that the
Department failed to consider social pressure and power disparities
between parties, such as between children and teachers,\1507\ and
victims and domestic abusers,\1508\ and their effect on the ``choice''
of informal resolution. Commenters argued that all sexual violence
situations reflect power dynamics that make mediation or informal
resolution not truly voluntary and pose a risk of further harm to
victims.\1509\ A few commenters noted that the prospect of
retraumatizing cross-examination under the NPRM's grievance procedures
means many parties have no real choice at all. One commenter asserted
that the final regulations should require recipients to ensure the
parties first confer with an advisor or counsel of their choice, and if
none is available, then one provided by the recipient, so that consent
to informal resolution is truly voluntary. Another commenter asserted
that, to avoid recipient biases to promote their own interests, the
final regulations should specify the circumstances in which recipients
can recommend informal resolution. Commenters believed that mediation
improperly shifts the burden of resolution to the parties, instead of
school professionals. One commenter claimed that informal resolution
could also violate a respondent's due process rights because recipients
could impose sanctions without formally investigating the case.
---------------------------------------------------------------------------
\1507\ Commenters cited: Samantha Craven et al., Sexual grooming
of children: Review of literature and theoretical considerations, 12
Journal of Sexual Aggression 3 (2006); Anne-Marie Mcalinden, Setting
'Em Up': Personal, Familial and Institutional Grooming in the Sexual
Abuse of Children, 15 Social & Legal Studies 3 (2006).
\1508\ Commenters cited: Karla Fischer et al., The Culture of
Battering and the Role of Mediation in Domestic Violence Cases, 46
S. Methodist Univ. L. Rev. 2117 (1993); Jacquelyn C. Campbell et
al., Risk Factors for Femicide in Abusive Relationships: Results
from a Multisite Case Control Study, 93 Am. J. of Pub. Health 1089
(2003).
\1509\ Commenters cited: Lois Presser & Cynthia A. Hamilton, The
Micropolitics of Victim-Offender Mediation, 76 Social Inquiry 316
(2006); Helen C. Whittle et al., A Comparison of Victim and Offender
Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7,
539 (2015); Mary P. Koss & Elise C. Lopez, VAWA After the Party:
Implementing Proposed Guidelines on Campus Sexual Assault
Resolution, 18 CUNY L. Rev. 1 (2014); Rajib Chanda, Mediating
University Sexual Assault Cases, 6 Harv. Negotiation L. Rev. 312
(2001); Mori Irvine, Mediation: Is it Appropriate for Sexual
Harassment Grievances, 9 Ohio State J. on Dispute Resolution 1
(1993).
---------------------------------------------------------------------------
Discussion: The Department appreciates the concerns expressed by
many commenters regarding whether parties' consent to informal
resolution is truly voluntary. To ensure that the parties do not feel
forced into an informal resolution by a recipient, and to ensure that
the parties have the ability to make an informed decision, Sec.
106.45(b)(9) requires recipients to inform the parties in writing of
the allegations, the requirements of the informal resolution process,
any consequences resulting from participating in the informal process,
and to obtain both parties' voluntary and written consent to the
informal resolution process. The Department acknowledges the concerns
expressed by these commenters, and the final regulations go a step
further than the NPRM by explicitly prohibiting recipients from
requiring the parties to participate in an informal resolution process,
and expressly forbidding recipients from making participation in
informal resolution a condition of admission or employment, or
enjoyment of any other right. We wish to emphasize that consent to
informal resolution cannot be the product of coercion or undue
influence because coercion or undue influence would contradict the
final regulations' prohibitions against a recipient ``requiring''
parties to participate in informal resolution, obtaining the parties'
``voluntary'' consent, and/or conditioning ``enjoyment of any other
right'' on participation in informal resolution. In addition, and as
discussed above, the Department believes that by extending the robust
training and impartiality requirements of Sec. 106.45(b)(1)(iii) to
individuals who facilitate informal resolutions, the perverse
incentives and biases that may otherwise taint an informal resolution
process will be effectively countered. The Department believes these
requirements have the cumulative effect of ensuring that the parties'
consent to informal resolution is truly voluntary, and that no party is
involuntarily denied the right to have sexual harassment allegations
resolved through the investigation and adjudication process provided
for by the final regulations. Indeed, we believe the cumulative effect
of these requirements will help to ensure that parties' consent to
informal resolution is truly voluntary, and therefore we decline to
mandate that the parties confer with an advisor before entering an
informal resolution process, or to mandate that recipients provide the
parties with advisors before entering an informal resolution process.
The Department shares commenters' concerns regarding grooming
behaviors common in situations where an employee sexually harasses a
student, which may result in any ostensibly
[[Page 30403]]
``voluntary'' choice of the student to engage in informal resolution
actually being the product of undue influence of the employee. Because
the option of informal resolution rests on the premise that no party is
ever required to participate, and where each party voluntarily engages
in informal resolution only because the party believes such a process
may further the party's own wishes and desires, we have removed from
the final regulations the option of informal resolution for any
allegations that an employee sexually harassed a student. The final
regulations leave recipients discretion to make informal resolution
available as an option, or not, with respect to sexual harassment
allegations other than when the formal complaint alleges that an
employee sexually harassed a student.
Subject to the modifications made in these final regulations,
described above, the Department believes that informal resolution
empowers the parties by offering alternative conflict resolution
systems that may serve their unique needs and provides greater
flexibility to recipients in serving their educational communities.
Thus, the Department concludes that permitting informal resolution is
an appropriate policy development subject to the limitations and
restrictions in the final regulations, notwithstanding the 2001
Guidance's position on mediation. The 2001 Guidance approved of
informal resolution for sexual harassment (as opposed to sexual
assault) ``if the parties agree to do so,'' cautioned that it is
inappropriate for a school to simply instruct parties to work out the
problem between themselves, stated that ``mediation will not be
appropriate even on a voluntary basis'' in cases of alleged sexual
assault, and stated that the complainant must be notified of the right
to end the informal process at any time and begin the formal complaint
process.\1510\ Within the conditions, restrictions, and parameters the
final regulations place on a recipient's facilitation of informal
resolution, we believe that the concerns underlying the Department's
prior position regarding mediation are ameliorated, while providing the
benefits of informal resolution as an option where that option is
deemed potentially effective by the recipient and all parties to the
formal complaint. The Department notes that nothing in Sec.
106.45(b)(9) requires an informal resolution process to involve the
parties confronting each other or even being present in the same room;
mediations are often conducted with the parties in separate rooms and
the mediator conversing with each party separately. The final
regulations ensure that only a person free from bias or conflict of
interest, trained on how to serve impartially, will facilitate an
informal resolution process. Further, we have revised Sec.
106.45(b)(9) to expressly allow either party to withdraw from the
informal resolution process and resume the grievance process with
respect to the formal complaint. These provisions address the concerns
about mediation addressed in the 2001 Guidance, without removing
informal resolution as an option for cases where informal resolution
may present the parties with a more desirable process and outcome than
a formal investigation and adjudication.
---------------------------------------------------------------------------
\1510\ 2001 Guidance at 21 (``Grievance procedures may include
informal mechanisms for resolving sexual harassment complaints to be
used if the parties agree to do so. OCR has frequently advised
schools, however, that it is not appropriate for a student who is
complaining of harassment to be required to work out the problem
directly with the individual alleged to be harassing him or her, and
certainly not without appropriate involvement by the school (e.g.,
participation by a counselor, trained mediator, or, if appropriate,
a teacher or administrator). In addition, the complainant must be
notified of the right to end the informal process at any time and
begin the formal stage of the complaint process. In some cases, such
as alleged sexual assaults, mediation will not be appropriate even
on a voluntary basis.'').
---------------------------------------------------------------------------
We believe concerns about perverse institutional incentives to
promote informal resolutions will be adequately addressed by the robust
requirements contained in the final regulations. Many commenters have
asserted that a recipient's student disciplinary process traditionally
has an educational rather than punitive purpose and thus object to the
formal procedures prescribed under the Sec. 106.45 grievance process.
The Department believes that the option of informal resolution gives
recipients an avenue for using the disciplinary process to educate and
change behavior in a way that the adversarial formal grievance process
might not, in situations where both parties voluntarily agree to
participate. At the same time, the final regulations ensure that
recipients cannot require the parties to use informal resolution, the
parties must give voluntary consent to informal resolution, and the
recipient cannot condition enrollment, employment, or enjoyment of any
other right, on participation in informal resolution. Recipients also
must not intimidate, threaten, or coerce any person for the purpose of
interfering with a person's rights under Title IX,\1511\ including the
right to voluntarily decide whether or not to participate in informal
resolution. These requirements counteract incentives a recipient may
have to pressure parties to engage in informal resolution.
---------------------------------------------------------------------------
\1511\ Section 106.71 prohibits retaliation: ``No recipient or
other person may intimidate, threaten, coerce, or discriminate
against any individual for the purpose of interfering with any right
or privilege secured by title IX or this part[.]''
---------------------------------------------------------------------------
We disagree that mediation improperly shifts the burden of
resolution to the parties instead of school professionals, and that
informal resolution could violate a respondent's due process rights.
Informal resolution under the final regulations is not possible without
the informed, voluntary consent of all parties, and persons who
facilitate informal resolution must be well-trained pursuant to Sec.
106.45(b)(1)(iii). Recipients must explain the parameters and
processes, consequences, and confidentiality implications of informal
resolution to the parties. Furthermore, the final regulations respond
to commenters' concerns by expressly providing that either party can
withdraw from the informal resolution process at any time prior to
reaching a final resolution and resume the formal grievance process. A
benefit of informal resolution may be that parties have a greater sense
of personal autonomy and control over how particular allegations are
resolved; however, where that avenue is not desirable to either party,
for any reason, the party is never required to participate in informal
resolution.
Changes: None.
Safety Concerns Based on Confidentiality
Comments: A few commenters expressed concerns that the confidential
nature of informal resolution could present safety risks to the
survivor and broader campus community because informal resolutions such
as mediation often happen behind closed doors and the broader school
community and other students may not become aware of the risks posed by
the perpetrator and so cannot take precautions.\1512\ Further, some
commenters believed that confidentiality requirements in resolution
agreements could silence survivors who would otherwise raise awareness
of the allegations and
[[Page 30404]]
criticize the recipient's handling of the case.
---------------------------------------------------------------------------
\1512\ Commenters cited: Jennie Kihnley, Unraveling the Ivory
Fabric: Institutional Obstacles to the Handling of Sexual Harassment
Complaints, 25 Law & Social Inquiry 69, 84 (2000); Laurie Rudman et
al., Suffering in Silence: Procedural Justice versus Gender
Socialization in University Sexual Harassment Grievance Procedures,
17 Basic & Applied Social Psychol. 4 (1995); Stephanie Riger, Gender
Dilemmas in Sexual Harassment Policies and Procedures, 46 Am.
Psychol. 5 (1991); Margaret B Drew, It's Not Complicated: Containing
Criminal Law's Influence on the Title IX Process, 6 Tenn. J. of
Race, Gender & Social Justice 2 (2017).
---------------------------------------------------------------------------
Discussion: The Department appreciates the concerns raised by some
commenters that the confidential nature of informal resolutions may
mean that the broader educational community is unaware of the risks
posed by a perpetrator; however, the final regulations impose robust
disclosure requirements on recipients to ensure that parties are fully
aware of the consequences of choosing informal resolution, including
the records that will be maintained or that could or could not be
shared, and the possibility of confidentiality requirements as a
condition of entering a final agreement. We believe as a fundamental
principle that parties and individual recipients are in the best
position to determine the conflict resolution process that works for
them; for example, a recipient may determine that confidentiality
restrictions promote mutually beneficial resolutions between parties
and encourage complainants to report,\1513\ or may determine that the
benefits of keeping informal resolution outcomes confidential are
outweighed by the need for the educational community to have
information about the number or type of sexual harassment incidents
being resolved.\1514\ The recipient's determination about the
confidentiality of informal resolutions may be influenced by the
model(s) of informal resolution a recipient chooses to offer; for
example, a mediation model may result in a mutually agreed upon
resolution to the situation without the respondent admitting
responsibility, while a restorative justice model may reach a mutual
resolution that involves the respondent admitting responsibility. The
final regulations permit recipients to consider such aspects of
informal resolution processes and decide to offer, or not offer, such
processes, but require the recipient to inform the parties of the
nature and consequences of any such informal resolution processes.
---------------------------------------------------------------------------
\1513\ Rajib Chanda, Mediating University Sexual Assault Cases,
6 Harv. Negotiation L. Rev. 265, 280 (2001) (acknowledging the
argument that the confidentiality of mediation is a negative feature
but asserting that mediation is still advantageous over litigation
or arbitration of sexual harassment cases because empirical evidence
suggests that parties not part of a dispute do not learn from the
public resolution of the case, and suggesting that the ``vast
underreporting'' of sexual harassment could be ``possibly due to the
public and adversarial nature of litigation and arbitration'' such
that the confidentiality of mediation could encourage more
reporting).
\1514\ Id. (acknowledging the argument that the confidentiality
of mediation means that people other than the parties ``may not even
know about the existence of the dispute'' and thus ``may discount
the incidence of sexual harassment, and thus underestimate the
seriousness of the problem'').
---------------------------------------------------------------------------
Changes: None.
Consistency With Other Law and Practice
Comments: A number of commenters asserted that informal resolution
under the NPRM would trigger conflict with other Federal and State law
and is inconsistent with best practices. For example, some commenters
stated that the Department failed to provide a reasoned explanation for
allowing mediation, given that such a position was rejected by both the
Bush and Obama Administrations for serious sexual misconduct cases.
Several commenters suggested that informal resolutions such as
mediation will chill reporting. Commenters urged the Department to
preserve the approach to mediation contained in the 2001 Guidance.
Commenters asserted that the Department of Justice has traditionally
discouraged use of mediation in sexual and intimate partner violence
cases and that some Federal programs prohibit grant recipients serving
victims from engaging clients in mediation related to their abuse;
commenters argued that all sexual violence cases but especially those
involving children and domestic abusers, involve power differential
dynamics that make mediation high-risk for the complainants.\1515\ A
few commenters argued that the NPRM's conflicts with State law
regarding mediation could trigger enforcement problems, cause confusion
for recipients and students, impose additional cost burdens, and prompt
lengthy litigation. Commenters argued that since 2000, the American Bar
Association (ABA) has recommended that mediation generally not be used
in domestic violence cases. And one commenter asserted that the
Department should not hold schools to lower standards than U.S.
companies, many of which are withdrawing mandatory mediation,
arbitration, and other alternative dispute resolution in their employee
contracts. Some commenters asserted that smaller recipients may not
have adequate resources and staff to handle mediations and other
informal resolutions.
---------------------------------------------------------------------------
\1515\ Commenters cited: Mary P. Koss et al., Campus Sexual
Misconduct: Restorative Justice Approaches to Enhance Compliance
with Title IX Guidance, 15 Trauma, Violence & Abuse 3 (2014).
---------------------------------------------------------------------------
Discussion: The Department acknowledges there may be differences
between the approach to informal resolution contained in the final
regulations and other Federal practices relating to informal
resolution. As discussed above, the Department believes that the
concerns underlying the position on mediation in the 2001 Guidance are
adequately addressed by these final regulations, including
modifications in response to commenters' concerns that allegations
involving sexual harassment of a student by an employee pose a
significant risk of ostensibly ``voluntary'' consent to mediation (or
other informal resolution) being the product of undue pressure by the
respondent on the complainant, and thus the final regulations preclude
informal resolution as an option with respect to allegations that an
employee sexually harassed a student. Because informal resolution is
only an option, and is never required, under the final regulations, the
Department does not believe that Sec. 106.45(b)(9) presents conflict
with other Federal or State laws or practices concerning resolution of
sexual harassment allegations through mediation or other alternative
dispute resolution processes.\1516\
---------------------------------------------------------------------------
\1516\ See discussion under the ``Section 106.6(h) Preemptive
Effect'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble.
---------------------------------------------------------------------------
The Department believes that an option of mediation may encourage
reporting of sexual harassment incidents,\1517\ but reiterates that the
final regulations do not require any recipient to offer informal
resolution and preclude a party from being required to participate in
informal resolution.
---------------------------------------------------------------------------
\1517\ Rajib Chanda, Mediating University Sexual Assault Cases,
6 Harv. Negotiation L. Rev. 265, 305 (2001) (a ``mediation option
for sexual assault victims addresses'' each of the three main
reasons why sexual assault is underreported--``that victims
anticipate social stigmatization, perceive a difficulty in
prosecution, and consider the effect on the offender'' because
mediation is not adversarial, avoids the need to ``prove'' charges,
and gives the victim control over the range of penalties on the
offender, all of which likely ``encourage [victims] to report the
incident'').
---------------------------------------------------------------------------
The Department agrees that informal resolution should not be
mandatory, and the final regulations explicitly prohibit recipients
from requiring students or employees to waive their right to a Sec.
106.45 investigation and adjudication of formal complaints as a
condition of enrollment or continuing enrollment, or employment or
continuing employment with the recipient. Recipients cannot force
individuals to undergo informal resolution under the final regulations.
Furthermore, the Department reiterates that nothing in the final
regulations requires recipients to offer an informal resolution
process. Recipients remain free to craft or not craft an informal
resolution process that serves their unique educational needs;
therefore,
[[Page 30405]]
smaller recipients that may not have adequate resources or staff to
handle informal resolution need not offer such processes.
Changes: None.
Training Requirements
Comments: Many commenters contended that the final regulations
should impose training and qualification requirements on mediators,
facilitators, arbitrators, and other staff involved in informal
resolution. For example, these commenters wanted the Department to
impose the same training requirements on personnel involved in formal
grievance procedures as on personnel handling informal resolution;
ensure no conflicts of interest; and minimize the risk of inappropriate
questioning during informal process and possible re-traumatization. One
commenter suggested that the Department encourage recipients to enter
into memoranda of understanding (MOUs) with third-party informal
resolution providers.
Discussion: The Department appreciates the well-taken concerns
raised by many commenters that the NPRM did not explicitly require
informal resolution personnel to be appropriately trained and
qualified. As a result, as discussed above, we have revised Sec.
106.45(b)(1)(iii) of the final regulations to require recipients to
ensure any individuals who facilitate an informal resolution process
must receive training on the definition of sexual harassment contained
in Sec. 106.30 and the scope of the recipient's education program or
activity; how to conduct informal resolution processes; and how to
serve impartially, including by avoiding prejudgment of the facts at
issue, conflicts of interest, or bias. As such, the Department believes
that it is unnecessary to encourage recipients to enter MOUs with third
party informal resolution providers, though the Department notes that
the final regulations permit recipients to outsource informal
resolutions to third party providers.
Changes: The Department has revised Sec. 106.45(b)(1)(iii) to
include persons who facilitate an informal resolution process as
persons who must be free from conflicts of interest and bias and
receive the same training as that provision requires for Title IX
Coordinators, investigators, and decision-makers.
Non-Binding Informal Resolution
Comments: Several commenters asserted that the Department should
allow mediation but require recipients to allow parties to return to
formal proceedings if they want to; otherwise respondents might have
less incentive to mediate in good faith and reach a reasonable outcome.
If mediation is binding, respondents may have no incentive to mediate
in good faith and reach a reasonable outcome. A few commenters argued
that schools must not offer a one-time choice of informal mediation
versus formal investigation. Survivors need to be able to change their
minds; their access to education can change over time. One commenter
asserted that informal resolution should only be binding where all
parties voluntarily agree on a resolution and the agreement's terms are
not breached. This commenter suggested that the final regulations
should include a provision stating that any agreement reached in
informal resolution or mediation must be signed by all parties, clearly
specify the terms by which the case is resolved, establish consequences
for breaching the agreement, detail how the parties can report breach
of agreement, and define how the breach would be addressed.
Discussion: The Department acknowledges that the NPRM proposed to
allow recipients to prohibit parties from leaving the informal
resolution process and returning to a formal grievance process. As
noted above, we have amended our approach to this issue such that Sec.
106.45(b)(9) of the final regulations explicitly permits either party
to withdraw from an informal resolution at any time before agreeing to
a resolution and resume the grievance process under Sec. 106.45. The
Department expects informal resolution agreements to be treated as
contracts; the parties remain free to negotiate the terms of the
agreement and, once entered into, it may become binding according to
its terms. The Department believes the cumulative effect of these
provisions will help to ensure that informal resolutions such as
mediation are conducted in good faith and that these processes may
reach reasonable outcomes satisfactory to both parties. As such, the
Department believes the alternative approaches offered by some
commenters, such as requiring a new subsection provision that would
cover breaches of informal resolution agreements, are unnecessary to
address such concerns.
Changes: The Department has revised Sec. 106.45(b)(9) to provide
that any party may withdraw from informal resolution at any time prior
to agreeing to a resolution, and resume the formal grievance process.
Survivor-Oriented Protections
Comments: A few commenters asserted the final regulations should
include explicit protections for survivors in the informal resolution
process. For example, the final regulations should prohibit in-person
questioning during informal process but allow written submissions by
the parties to avoid re-traumatization. Commenters suggested that the
final regulations should categorically prohibit schools from requiring
complainants to resolve the problem alone with the respondent. Some
commenters stated that if mediation is an option, survivors should
determine the format, such as having someone sit in on their behalf or
requiring the parties to be in separate rooms. Otherwise, the process
could become irresponsible and cause more harm than good. A few
commenters asserted that the final regulations should require
recipients to evaluate all potential risks before proposing informal
resolution. One commenter suggested that Sec. 106.44(c) regarding
safety and risk analysis for emergency removals could be a model for
informal resolutions, such that recipients should thoroughly
investigate the situation and parties' relationship to ensure informal
resolution is appropriate.
Discussion: The Department appreciates the suggestions offered by
some commenters to include explicit survivor-oriented protections in
the informal resolution provisions in Sec. 106.45(b)(9) of the final
regulations. The Department declines to make these changes because the
changes would restrict recipients' flexibility and discretion in
satisfying their Title IX obligations and meeting the needs of the
members of their educational community. The Department believes that
the parties are in the best position to make the right decision for
themselves when choosing informal resolution, and that choice will be
limited in scope based on what informal processes a recipient has
deemed appropriate and has chosen to make available. As such, we
believe that to require a safety and risk analysis before recipients
may offer informal resolutions would be unnecessary, though nothing in
the final regulations precludes a recipient from following such a
practice. Similarly, nothing in Sec. 106.45(b)(9) precludes a
recipient from categorically refusing to offer and facilitate an
informal process that involves the parties directly interacting, from
prohibiting a facilitator from directly questioning parties, or from
requiring the parties to be in separate rooms.
[[Page 30406]]
Changes: None.
Restorative Justice
Comments: Many commenters opposed mediation but supported expanding
access to, and Department funding of, restorative justice. These
commenters raised the point that restorative justice requires the
perpetrator to admit wrongdoing from the beginning and work to redress
the harm caused, whereas mediation requires no admission of guilt,
implicitly rests on the premise both parties are partially at fault for
the situation and must meet in the middle, and often entails debate
over the facts. Commenters cited studies suggesting restorative justice
has resulted in reduced recidivism for offenders and better outcomes
for survivors.\1518\ One commenter stated that many recipients
currently implement restorative justice, but only where the respondent
is willing to accept responsibility, and stated that the process does
not require face-to-face meeting between the parties, and the most
severe misconduct is not eligible. One commenter was concerned that
because Sec. 106.45(b)(9) suggests informal processes can only be
facilitated prior to reaching a determination regarding responsibility
this can complicate or end up precluding restorative justice, because
restorative justice requires admission of responsibility before
participation.
---------------------------------------------------------------------------
\1518\ Commenters cited: Clare McGlynn et al., ``I just wanted
him to hear me'': Sexual violence and the possibilities of
restorative justice, 39 Journal of L. & Society 2 (2012); Katherine
Mangan, Why More Colleges Are Trying Restorative Justice in Sex-
Assault Cases, Chronicle of Higher Education (Sept. 17, 2018); Kerry
Cardoza, Students Push for Restorative Approaches to Campus Sexual
Assault, Truthout (Jun. 30, 2018); Howard Zehr, The Little Book of
Restorative Justice (Good Books 2002); David R. Karp et al., Campus
Prism: A Report On Promoting Restorative Initiatives For Sexual
Misconduct On College Campuses, Skidmore College Project on
Restorative Justice (2016); Margo Kaplan, Restorative Justice and
Campus Sexual Misconduct, 89 emp. L. Rev. 701, 715 (2017).
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' support for
restorative justice as a viable method of informal resolution,
commenters' concerns regarding mediation, and the common differences
between the two resolution processes.\1519\ One of the underlying
purposes of Sec. 106.45(b)(9) is to recognize the importance of
recipient autonomy and the freedom of parties to choose a resolution
mechanism that best suits their needs. As such, nothing in Sec.
106.45(b)(9) prohibits recipients from using restorative justice as an
informal resolution process to address sexual misconduct incidents.
---------------------------------------------------------------------------
\1519\ Mediation does not bar imposition of disciplinary
sanctions. E.g., Rajib Chanda, Mediating University Sexual Assault
Cases, 6 Harv. Negotiation L. Rev. 265, 301 (2001) (defining
mediation as ``a process through which two or more disputing parties
negotiate a voluntary settlement with the help of a `third party'
(the mediator) who typically has no stake in the outcome'' and
stressing that this ``does not impose a `win-win' requirement, nor
does it bar penalties. A party can `lose' or be penalized; mediation
only requires that the loss or penalty is agreed to by both
parties--in a sexual assault case, `agreements . . . may include
reconciliation, restitution for the victim, rehabilitation for
whoever needs it, and the acceptance of responsibility by the
offender.''') (internal citations omitted).
---------------------------------------------------------------------------
With respect to the implications of restorative justice and the
recipient reaching a determination regarding responsibility, the
Department acknowledges that generally a critical feature of
restorative justice is that the respondent admits responsibility at the
start of the process. However, this admission of responsibility does
not necessarily mean the recipient has also reached that determination,
and participation in restorative justice as a type of informal
resolution must be a voluntary decision on the part of the respondent.
Therefore, the language limiting the availability of an informal
resolution process only to a time period before there is a
determination of responsibility does not prevent a recipient from using
the process of restorative justice under Sec. 106.45(b)(9), and a
recipient has discretion under this provision to specify the
circumstances under which a respondent's admission of responsibility
while participating in a restorative justice model would, or would not,
be used in an adjudication if either party withdraws from the informal
process and resumes the formal grievance process. Similarly, a
recipient could use a restorative justice model after a determination
of responsibility finds a respondent responsible; nothing in the final
regulations dictates the form of disciplinary sanction a recipient may
or must impose on a respondent.
Changes: None.
Avoiding Formal Process
Comments: One commenter expressed concern that recipients could
simply offer informal resolution and only informal resolution to get
around the NPRM's formal process requirements. To address this, the
commenter argued the final regulations should clearly state that
recipients must implement a formal resolution process regardless of
their choice to facilitate an informal resolution process.
Discussion: The Department acknowledges the concern that under the
NPRM it may have appeared that recipients could avoid formal grievance
procedures altogether by solely offering informal resolution. To
address this concern, we have revised Sec. 106.45(b)(9) to preclude
recipients from requiring students or employees to waive their rights
to a Sec. 106.45 grievance process as a condition of enrollment or
employment, or enjoyment of any other right, include a statement that a
recipient may never require participation in informal resolution, and
clarify that a recipient may not offer informal resolution unless a
formal complaint is filed. As such, recipients must establish a
grievance process that complies with Sec. 106.45 to ensure that
parties' Title IX rights are realized, and the parties may participate
in informal resolution only after a formal complaint has been filed,
ensuring that the parties are therefore aware of the allegations at
issue and the formal procedures for investigation and adjudication that
will apply absent an informal resolution process.
Changes: The Department has revised Sec. 106.45(b)(9) to preclude
a recipient from requiring any party to waive the right to a formal
grievance process as a condition of enrollment, employment, or
enjoyment of any other right, that a recipient may never require
participation in informal resolution, and that a recipient may not
offer informal resolution unless a formal complaint is filed.
Electronic Disclosures
Comments: One commenter asserted that the Department should allow
electronic disclosures and signatures to obtain parties' consent to
informal resolution to enhance privacy and security of sensitive
documents, and because written notice requirements are costly and
unnecessary in 2019.
Discussion: The final regulations do not specify the method of
delivery for written notices and disclosures required under the final
regulations, including the method by which the recipient must obtain
parties' voluntary written consent to informal resolution. The
Department acknowledges the potential convenience, privacy, and
security benefits of shifting from physical disclosures and signatures
to electronic disclosures and signatures but leaves recipients with
discretion as to the method of delivery of written notices under Sec.
106.45(b)(9).
Changes: None.
Expulsion Through Informal Resolution
Comments: One commenter argued that expulsion is an inappropriate
sanction for informal resolution, and the Department should prohibit
schools from expelling students through
[[Page 30407]]
informal resolution to ensure a fair process for all.
Discussion: The Department believes that the robust disclosure
requirements of Sec. 106.45(b)(9), the requirement that both parties
provide voluntary written consent to informal resolution, and the
explicit right of either party to withdraw from the informal resolution
process at any time prior to agreeing to the resolution (which may or
may not include expulsion of the respondent), will adequately protect
the respondent's interest in a fair process before the sanction of
expulsion is imposed. Accordingly, the Department believes that
prohibiting recipients from using informal resolution where it results
in expulsion is unnecessary; if expulsion is the sanction proposed as
part of an informal resolution process, that result can only occur if
both parties agree to the resolution. If a respondent, for example,
does not believe that expulsion is appropriate then the respondent can
withdraw from the informal resolution process and resume the formal
grievance process under which the recipient must complete a fair
investigation and adjudication, render a determination regarding
responsibility, and only then decide on any disciplinary sanction.
Changes: None.
Clarification Requests
Comments: Several commenters raised questions regarding the
informal resolution provisions of the NPRM. One commenter inquired as
to whether a time frame could apply after which neither party could ask
for an ongoing informal resolution process to be set aside and proceed
with formal investigation and adjudication. One commenter raised
concerns regarding recipients' legal liability if the informal
resolution process included a respondent's acknowledgement of a policy
violation, but the respondent was allowed to remain on campus and
violated that same policy again. One commenter sought clarification as
to whether informal resolution could include a respondent taking
responsibility and accepting disciplinary action without any meeting or
process at all. One commenter raised questions as to what happens to
ongoing informal resolution process where more complaints are brought
against the same respondent. One commenter asked whether parties can
proceed with informal resolution even where the recipient believes it
is inappropriate to resolve the case. One commenter inquired whether
the NPRM's informal resolution provisions only apply where a formal
complaint was filed against the respondent. And one commenter sought
clarification as to whether schools remain free to prohibit informal
resolutions under the NPRM.
Discussion: The Department appreciates the questions raised by
commenters regarding Sec. 106.45(b)(9). The final regulations clarify
that either party can withdraw from the informal resolution process and
resume the formal grievance process at any time prior to agreeing to a
resolution. The Department appreciates the opportunity to clarify here
that informal resolution compliant with Sec. 106.45(b)(9) is a method
of resolving allegations in a formal complaint of sexual harassment.
Because a recipient must investigate and adjudicate allegations in a
formal complaint, informal resolution stands as a potential alternative
to completing the investigation and adjudication that the final
regulations otherwise require. Under the final regulations, a recipient
may not offer informal resolution unless a formal complaint has been
filed.
With respect to recipients' potential legal liability where the
respondent acknowledges commission of Title IX sexual harassment (or
other violation of recipient's policy) during an informal resolution
process, yet the agreement reached allows the respondent to remain on
campus and the respondent commits Title IX sexual harassment (or
violates the recipient's policy) again, the Department believes that
recipients should have the flexibility and discretion to determine
under what circumstances respondents should be suspended or expelled
from campus as a disciplinary sanction, whether that follows from an
informal resolution or after a determination of responsibility under
the formal grievance process. Recipients may take into account legal
obligations unrelated to Title IX, and relevant Title IX case law under
which Federal courts have considered a recipient's duty not to be
deliberately indifferent by exposing potential victims to repeat
misconduct of a respondent, when considering what sanctions to impose
against a particular respondent. The Department declines to adopt a
rule that would mandate suspension or expulsion as the only appropriate
sanction following a determination of responsibility against a
respondent; recipients deserve flexibility to design sanctions that
best reflect the needs and values of the recipient's educational
mission and community, and that most appropriately address the unique
circumstances of each case. While Federal courts have found recipients
to be deliberately indifferent where the recipient failed to take
measures to avoid subjecting students to discrimination in light of
known circumstances that included a respondent's prior sexual
misconduct,\1520\ courts have also emphasized that the deliberate
indifference standard is not intended to imply that a school must
suspend or expel every respondent found responsible for sexual
harassment.\1521\
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\1520\ E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477 F.3d 1282, 1296-97 (11th Cir. 2007).
\1521\ E.g., id. at 1297 (suspending or expelling offenders
would have been one measure the university could have taken to avoid
subjecting the plaintiff to discrimination in the form of further
sexual misconduct perpetrated by the offenders, but other measures
could also have been pursued by the university, such as removal of
the offenders from their housing, or implementing a more protective
sexual harassment policy to address future incidents); Davis v.
Monroe Cnty. Bd. of Educ., 546 U.S. 629, 648 (1999) (``We thus
disagree with respondents' contention that, if Title IX provides a
cause of action for student-on-student harassment, `nothing short of
expulsion of every student accused of misconduct involving sexual
overtones would protect school systems from liability or damages.'
See Brief for Respondents 16; see also [Davis v. Monroe Cnty. Bd. of
Educ.,] 120 F.3d [1390 (11th Cir. 1997)] at 1402 (Tjoflat, J.) ('[A]
school must immediately suspend or expel a student accused of sexual
harassment'). Likewise, the dissent erroneously imagines that
victims of peer harassment now have a Title IX right to make
particular remedial demands. See post, at 34 (contemplating that
victim could demand new desk assignment). In fact, as we have
previously noted, courts should refrain from second guessing the
disciplinary decisions made by school administrators.'').
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The Department reiterates that the final regulations do not require
recipients to establish an informal resolution process. As such, if
recipients believe it is inappropriate, undesirable, or infeasible to
use informal resolution to address sexual harassment under Title IX,
then recipients may instead offer only the Sec. 106.45 grievance
process involving investigation and adjudication of formal complaints.
Changes: We have revised Sec. 106.45(b)(9) to state that
recipients may not offer informal resolution unless a formal complaint
has been filed.
Recordkeeping
Section 106.45(b)(10) Recordkeeping and Directed Question 8
Comments: Many commenters expressed general support for the
recordkeeping requirements in Sec. 106.45(b)(10). Some commenters
expressed that this provision would improve the overall transparency
and integrity of the Title IX grievance process, discourage colleges
and universities from utilizing training materials that employ sex
stereotypes, and encourage recipients to adopt a high standard of
training that provides investigators with proper trauma training. Many
commenters, however,
[[Page 30408]]
opposed any recordkeeping requirement, arguing that these requirements
are not victim-centered or trauma-informed, that it is burdensome, time
consuming, and will greatly slow the investigation process.
Some commenters stated that several institutions of higher
educations' retention policies dictate keeping records for even longer
periods of time than the three years suggested in the NPRM, and that
lengthening the retention period in this provision would facilitate the
parties' abilities to prepare cases and appeals.
Many commenters opposed the recordkeeping requirement. The
commenters stated that a three-year time period fails to take into
account that State law may require a longer period of retention, or
that three years often does not cover a student's educational tenure at
an institution. They also argued that this closely resembles
requirements in the criminal justice system, which will reduce the
likelihood of an erroneous finding of guilt. Many of the commenters
opposed the three-year period of retention of records as being too
short. Because most students take more than three years to graduate
from an institution of higher education, a student's record could be
erased prior to their graduation. This could limit a recipient's
ability to fully address sporadic but repeated sex discrimination that
fails to garner the notice of recipients and is lost forever in records
discarded from three years prior. Also, such circumstances could
trigger the Title IX Coordinator's duty to file a formal complaint
under proposed Sec. 106.44(b)(2). As the average graduation rate at an
institution of higher education is six years, there may be times in
which a respondent had a prior allegation in year one, and another
allegation in year five. Commenters also asked whether the Title IX
Coordinator is required to bring forward a complaint, and if so, what
records would be used if this three-year period had passed?
Commenters asserted that freshmen college students are more likely
to be involved in a sexual harassment proceeding than upperclassmen and
thus by allowing schools to destroy these records before such a
freshman student graduates, the recipient and the larger community
might be prevented from learning from the earlier incident if the
respondent reoffends.
Commenters argued that for students attending schools where they
could be present for more than three years, such as a K-8 school,
students could outlast the record of their harassment or assault, even
within a single institution. Commenters argued that it makes little
sense for a student sexually harassed in the third grade to enter the
seventh grade, at the same institution, without a record of those past
experiences; for example, the perpetrator might be placed in a
survivor's class and the relevant teachers might not understand how to
implement appropriate supportive measures. Commenters asserted that for
elementary and secondary school students, these records are important
when students transfer between schools or school districts, and that a
funding recipient must know when a new student at their school has been
sexually assaulted or harassed in the past in order to provide
appropriate services.
Other commenters opposed the three-year retention period on the
grounds that it would impair the legal rights of minor children, and is
inconsistent with State statutes of limitations, if evidence
surrounding the student's harassment and their schools' response was
unavailable because it was older than three years. Commenters stated
that many States allow for minors to file civil suits only once they
reach the age of majority, and that Federal and State laws consistently
toll relevant statute of limitations periods until minors reach the age
of majority and have the ability to vindicate their own rights,
recognizing that they should not be punished for the failure of a
guardian to file a claim on their behalf.
Several commenters stated that, in the case of employee-on-student
harassment and ``sexually predatory educators,'' this would allow
employee records to be periodically cleansed of evidence of wrongdoing
relatively quickly (three years), thereby putting future students at
risk.
Other commenters stated that the three-year retention period is so
short that it would limit complainants' ability to succeed in a Title
IX lawsuit or OCR complaint because it would allow recipients to
destroy relevant records before a party has had the opportunity to file
a complaint or complete discovery, and therefore escape liability.
Commenters recommended the provision be modified to state: ``If
litigation is pursued before the expiration of the three-year period,
records should be kept until the final action is completed.''
Commenters argued that the Title IX statute does not contain a statute
of limitations, so courts generally apply the statute of limitation of
the most analogous State laws regarding retention periods or statutes,
e.g., a State's civil rights statute or personal injury statute which
varies from one to six years.
Many commenters found the three-year retention period confusing and
argued that the Department provided no rationale for it. Commenters
stated the retention period would conflict with State requirements, or
other disciplinary actions (e.g., long-term suspension) that require
longer document retention (e.g., in Washington State, districts must
retain records related to discrimination complaints for six years.)
Several commenters, in asserting that the three-year retention
period is too short, proposed alternate retention periods. One
commenter stated, in order to avoid conflict with State requirements,
the Department should modify Sec. 106.45(b)(10) to read: ``maintain
for a minimum of three years or as required by State statute . . .'' or
``seven years, or 3 years after all parties graduate, whichever is
sooner,'' or keeping records until one year after a student graduates.
Some commenters stated the retention period should not be tied to the
Clery Act's limitation period for reporting specific campus crimes in
an annual security report. (Clery Act, 20 U.S.C. 1092(f); 34 CFR
668.46(c)(1) (requiring schools to annually report all crimes which
occurred in the prior three calendar years by the end of the following
year). Other commenters suggested the period be six years, or modified
to state ``files should be retained for the time the student is
involved on campus and extended for a reasonable time period that
considers the student may enroll for a graduate degree.''
Many commenters proposed that records be kept for a minimum of
seven years, instead of three, in keeping with best practices for
student record-keeping as well as general accounting practices. Some
commenters stated medical and tax records are required to be kept for
seven years, so records of sexual abuse should be kept for the same
amount of time, if not more. Furthermore, the commenters stated a
three-year period would hinder the Department's efforts to ensure
compliance, especially if a continuing violation is alleged or class-
wide discrimination is occurring over multiple years, and conflict with
the Clery records retention requirement of seven years. Rather,
commenters asserted, this section should mirror the Clery Act retention
effective time period requirement of seven years to avoid confusion and
the potential for documents to be misfiled and destroyed. Commenters
recommended this provision be modified to state: ``All records must be
kept for at least three years following the generation of the last
record associated with the report or complaint.'' Or: ``. . . and
maintain for
[[Page 30409]]
a period of three years from the date the disciplinary proceedings,
including any appeals, is completed.'' Commenters also requested to
extend the time period by stating: ``. . . or in the presence of an
active investigation by OCR or other court system, until the
investigation and determination is completed.'' Commenters noted that
in the past, OCR complaints involving campus sexual assault have taken
an average of more than four years to resolve.
Many commenters recommended that the retention period be linked to
the parties' attendance in the recipient's program or activity. For
example, commenters referenced the FERPA statute in recommending that
the standard time period for retention be five to seven years after
graduation or separation from an institution. Other commenters
recommended the retention period be changed to three years or the point
at which any parties are no longer in attendance at the institution,
whichever comes later. Commenters stated that three-year retention
period should be limited to student-complainants or student-respondents
because if one or both parties are staff or faculty, their association
with the recipient may extend for many years. Commenters recommended
that Sec. 106.45(b)(10) require the recipient to create, gather, and
maintain the records for the duration of the students' time in school
and then five years after the last student involved has graduated, and
to define all important terms in a way that prevents loopholes and
misconduct.
Other commenters recommended that recipients be allowed to
determine the appropriate amount of time to retain records, in keeping
with their own policies. Commenters requested that this requirement be
made permissive for elementary and secondary school recipients--that
such recipients ``may'' create records--and may only retain them for
one year, stating that some primary or secondary schools are not
required to maintain these kinds of records, and may not retain them in
excess of one year.
Some commenters recommended that records be maintained for a
minimum of ten years, arguing that, if not, the proposed rules would
decrease the volume of relevant records, and in turn burden the Federal
government because Federal background clearance investigations would
become unreliable; agencies would inevitably make a favorable national
security clearance or employment suitability determination without
being aware of a candidate's past proven sexual assault if it occurred
more than three years prior.
Some commenters stated that records should be kept based on the
criminal justice systems' statutes of limitations, if not longer, to
ensure consistency between institutional standards and State standards
and ensuring parties can appropriately represent themselves. The three-
year requirement could undermine criminal prosecutions related to the
incidents at issue because it would permit recipients to discard vital
records that could help the criminal prosecution of sexual assault or
rape before the statute of limitations for such crimes has run, thereby
potentially letting the perpetrators go free. For example, commenters
contended, an elementary and secondary school could have ceased
maintaining records of a sexual assault investigation before the
student reaches the age of 18 and has the ability to vindicate their
own rights. Other commenters argued that, if the underlying offense can
still be prosecuted ten years after it occurred, then the recipient has
a duty to retain those records for an equal length of time, especially
if any aspect of the school's investigation had to be put on hold for
``good cause,'' e.g., until police and the court system have wrapped up
their investigations.
Some commenters asserted that records should be kept at least as
long as the educational program at which the events took place exists,
if not indefinitely. Otherwise, they argue, it would allow the records
of employees, who may have a longer tenure at an institution, to be
periodically cleansed of any evidence of wrongdoing. Most students
attend the same institution for four or more years during their
elementary school, middle school, high school, college, and graduate
school experiences. Commenters argued that an indefinite timeline is
critical to ensure that complainants have ongoing access to their files
and evidence to allow them flexibility to pursue the Title IX or
criminal law process when it is safe and appropriate for them. Some
commenters argued that if a complainant chooses to access the legal
system simultaneously or independently from the institution, their
evidence should be accessible to them at any point in time. If someone
were to make a report within their first year of enrollment, and waited
longer than the proposed three years to go through with a formal
investigation or hearing, the complainant would not have access to the
information shared when they had a fresher memory of the incident.
Commenters stated that complainants may not come forward immediately
for various reasons, including trauma, youth, coping mechanisms, lapses
in memory, fear of re-assault, escalation, or retaliation.
Commenters asserted that three years is too short a time period to
allow OCR to conduct a thorough investigation of the prevalence of
sexual harassment in a recipient's programs or activities and that it
would also not allow recipients to monitor campus climate, identify
trends in sexual misconduct that need to be addressed on a community
level, or flag sexual predators. Commenters argued that problematic
sexual behavior tends to develop and escalate over time, and that if
school systems keep track of developing behavior patterns, they can
both prevent future violations and ensure that the individual with the
problematic behavior pattern receive educational intervention to
prevent the individual from forfeiting the individual's education by
committing, for example, criminal offenses. Recipients, commenters
stated, could maintain records indefinitely in a digital cloud account.
Several commenters requested further clarification as to what types
of records a recipient should keep. Commenters asked whether the
recipient should keep transcripts of hearings or merely a list of steps
taken. Other commenters asked when the clock begins to calculate the
time at which recipients may destroy records: Does the time toll from
the date of the incident or the date the incident is reported? Or does
the clock begin at the conclusion of the complaint?
Several commenters stated that the requirement about access to
records seemed to contradict the provision that requires supportive
measures to be kept confidential. Commenters argued that this provision
will erode any confidentiality in the Title IX office and create
institutional liability. Commenters also queried whether the
recordkeeping provision encompasses an investigation of unwelcome
conduct on the basis of sex that did not effectively deny the victim
equal access to the recipient's program or activity and was not
otherwise sexual harassment within the meaning of Sec. 106.30.
Several commenters requested that access to records be limited,
that they not be made available through the Freedom of Information Act
(FOIA), that access be in accordance with FERPA, and that Sec.
106.45(b)(7)(i)(A) be modified to include ``their sexual harassment
investigation . . .'' to avoid the burdensome interpretation that
complainants and respondents may have access to ``each sexual
harassment investigation'' maintained by the recipient. Similarly,
commenters requested that this provision require
[[Page 30410]]
that any records collected be protected in a manner that will not
permit access to the personal identification of students to individuals
or entities other than the authorized representatives of the Secretary;
and that any personally identifiable data be destroyed at the end of
the retention period.
Some commenters argued that the required access to records is
ambiguous and vague. Several commenters requested further clarification
on the parameters of this requirement, including whether the access
requirement affords the complainant and respondent access to each
other's files, or just their own. Another commenter asked whether a
recipient who chose to take no action at all in response to a report of
sexual harassment must maintain a record of the report. A commenter
also asked whether the provision applies only to reports or complaints
that were known at the time to an individual with authority to
institute corrective measures.
Several commenters who were in overall support of the provision
stated that a recipient's Title IX training materials should be made
publicly available because this allows the training materials to be
assessed for fairness, absence of bias, and respect for the parties.
Many commenters stated that training should be available to all
students, teachers, parents, and the public because and it may help
students decide which college to attend, and that the training needs to
incorporate due process protections, be evidence-based, and focused on
determining the truth. Commenters stated that public dissemination of
the training materials would keep a check on quality of training and
promote accountability and confidence in the Title IX grievance system.
Commenters requested that the requirement concerning the retention
of training materials only pertain to changes that are of material
significance; updates that are proofreading or aesthetic in nature
should not require notation. Commenters also recommended that the
provision narrow the required window for archiving of training
materials to three years prior to the date of the hearing.
Some commenters found this requirement confusing, unnecessary, and
burdensome. Commenters queried about the type of documentation that
must be maintained regarding training, and that data and storage
requirements to maintain records for three years could become
burdensome for smaller recipients. Some commenters suggested that a
list of annual training, including topics and who attended, be
maintained instead.
Some commenters opposed the provision and requested that recipients
keep an internal database of all sexual harassment reports, so that
after a second or third independent report from a different
complainant, a school can escalate its response to the alleged
harassment to prevent further harm. Other commenters requested the
entire deletion of subsection (D), asserting that: The provision does
not explain what OCR's expectations will be regarding the training, so
it is impossible to know what training records to maintain; training is
an ongoing process that involves information from informal and formal
sources; and at most, recipients should be required to summarize the
qualifications of the investigators, Title IX Coordinators, and
adjudicators.
Commenters who opposed Sec. 106.45(b)(10) also requested that this
provision clarify that recipients should not release information about
remedies provided to the complainant as this should be kept as private
as possible because remedies are often personal, and may include
changes to a complainant's schedule, medical information, counseling,
and academic support. Commenters argued that a respondent has little
legitimate interest in knowing the complainant's remedies and could
exploit such information in a retaliatory manner. Some commenters
requested that if a student then sues, or goes to OCR, the college
should hand over all materials without the need for legal action.
Some commenters wanted recipients to collect additional data
regarding when the complaint was filed, whether there were any cross
complaints, when, how, and to what extent the respondent was notified,
demographic information about the parties, the number of complaints
that found respondent responsible, and the sanctions.
Other commenters suggested the creation of a new section requiring
recipients to send all records once a year to the Department. Some
commenters requested that the Department require the collection of
additional data: Number and names of Title IX staff, consultants and
advisors, budget and person hours, the number of Title IX complaints
reported, how each complaint was resolved, remedies provided, number of
complaints deemed false accusations or where evidence did not support
accusation, number of Title IX law suits by both complainants and
respondents, ongoing court cases, number and type of settlements, legal
costs to an institution of Title IX litigation, settlement costs to the
institution and/or the institution's insurance companies. Commenters
argued that demographic data on complainants and respondents would help
the public evaluate whether discipline has a disparate impact on the
basis of race, sex, disability, and other protected statuses, and the
fact that recipients already perform such data collection for the CRDC
demonstrates that postsecondary institutions could do the same without
undue burden; these commenters asserted that the Department has the
authority to require such data collection. Other commenters requested
that discipline records prior to college must be sealed to avoid
excessively harmful or unfair use of juvenile records.
Some commenters requested that the Department remove the
requirement that recipients keep records for the bases of their
conclusion about deliberate indifference, as this is a determination
made by the Department if and when a civil rights complaint is filed.
Other commenters requested that the recordkeeping requirement
exempt ombudspersons. These commenters argued that ombudspersons are
objective, neutral, and confidential resources who provide information
regarding the grievance process, and advocates for equitably
administered processes.
Commenters suggested the deletion of the last sentence of
106.45(b)(7)(ii), ``The documentation of certain bases or measures . .
. .'' The commenters argued that the sentence would allow recipients to
add post hoc alterations and justifications to the record of a formal
complaint, which is inconsistent with principles of basic fairness.
Discussion: The Department, having considered the commenters'
concerns about the three-year retention period proposed in the NPRM, is
persuaded that the three-year retention period should be extended to
seven years for consistency with the Clery Act's recordkeeping
requirements.\1522\ Although elementary and secondary schools are not
subject to the Clery Act, the Department desires to harmonize these
final regulations with the obligations of institutions of higher
education under the Clery Act to facilitate compliance with both the
Clery Act and Title IX. At the same time, we do not believe that a
seven year period rather than the proposed three-year period will be
more difficult for elementary and secondary schools (who
[[Page 30411]]
are not subject to the Clery Act), because elementary and secondary
schools are often under recordkeeping requirements under other laws
with retention periods of similar length. The seven-year requirement
also addresses many commenters' concerns about three years being an
inadequate amount of time for reasons such as a college freshman's
Title IX case file being destroyed before that student has even
graduated from a four-year program, or that a young student in
elementary school who becomes a party to a Title IX proceeding cannot
count on the student's case file being available by the time the
student is in junior high, or that three years is too short a time for
recipients to benefit from records of sexual harassment where a
respondent re-offends years later.
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\1522\ Clery Act, 20 U.S.C. 1092(f); 34 CFR 668.46(c)(1).
---------------------------------------------------------------------------
The Department notes that while the final regulations require
records to be kept for seven years, nothing in the final regulations
prevents recipients from keeping their records for a longer period of
time if the recipient wishes or due to other legal obligations. Any
recipient that needs or desires to keep records for ten years to
facilitate more complete Federal background checks as one commenter
requested, or indefinitely as another commenter proposed, may do so.
The Department declines to base this record retention provision around
the potential need for use in litigation; the Department does not
regulate private litigation, and in any event the Department believes
that the extension of the retention period in these final regulations
to seven years adequately covers the period of most statutes of
limitations that apply to causes of action that may derive from the
same facts and circumstances as the recipient's handling of a Title IX
sexual harassment report or formal complaint. The Department declines
to base the retention period around the length of time each student is
enrolled by a recipient because a standardized expectation of the
minimum time that these Title IX records will be kept by a recipient
more easily allows a recipient to meet this requirement than if the
time frames were customized to the duration of each student's
enrollment.
The Department understands commenters' concerns that records of
sexual harassment cases involving employees posed particular reasons
supporting a longer retention period, and the modification to a seven
year requirement addresses those concerns while allowing recipients to
adopt a policy keeping sexual harassment records concerning employees
for longer than the seven year retention period required under these
final regulations.
In response to commenters' concerns that this provision giving the
parties access to records might contradict the requirement to keep
supportive measures confidential, the Department has revised Sec.
106.45(b)(10)(i) to remove the language making records available to
parties. Because the parties to a formal complaint receive written
notice of the allegations, the evidence directly related to the
allegations, the investigative report, and the written determination
(as well as having the right to inspect and review the recording or
transcript of a live hearing), the Department is persuaded that the
parties' ability to access records relevant to their own case is
sufficiently ensured without the risk that making records available to
parties under proposed Sec. 106.45(b)(10) would have resulted in
disclosure to one party of the supportive measures (or remedies)
provided to the other party.
Section 106.45(b)(10)(i)(A) requires recipients to maintain records
of ``each sexual harassment investigation.'' Any record that the
recipient creates to investigate an allegation, regardless of later
dismissal or other resolution of the allegation, must be maintained for
seven years. Therefore, recipients must preserve all records, even
those records from truncated investigations that led to no adjudication
because the acts alleged did not constitute sex discrimination under
Title IX and the formal complaint (or allegation therein) was
dismissed. The Department also wishes to clarify that the date of the
record's creation begins the seven year retention period. We reiterate
that recipients may choose to keep each record for longer than seven
years, for example to ensure that all records that form part of a
``file'' representing a particular Title IX sexual harassment case are
retained for at least seven years from the date of creation of the last
record pertaining to that case.
Regarding the Freedom of Information Act (FOIA),\1523\ and similar
State laws that require public disclosure of certain records, the
Department cannot opine on whether disclosure of records required to be
retained under the final regulations would, or would not, be required
under FOIA or similar laws because such determinations require fact-
specific analysis.
---------------------------------------------------------------------------
\1523\ 5 U.S.C. 552 et seq.
---------------------------------------------------------------------------
Additionally, as explained in the ``Section 106.6(e) FERPA''
subsection of the ``Clarifying Amendments to Existing Regulations''
section of this preamble, these final regulations, including Sec.
106.45(b)(10)(i), do not run afoul of FERPA and to the extent possible,
should be interpreted consistently with a recipient's obligations under
FERPA. To address any concerns, the Department has removed the phrase
``make available to the complainant and respondent'' in Sec.
106.45(b)(10) out of an abundance of caution and in case this phrase
may have created confusion. Accordingly, the requirement to maintain
records is separate and apart from the right to inspect and review
these records under FERPA, and these final regulations specifically
address when the parties must have an opportunity to inspect and review
records relating to the party's particular case. For example, Sec.
106.45(b)(5)(vi) requires that the recipient provide both parties an
equal opportunity to inspect and review any evidence obtained as part
of the investigation that is directly related to the allegations raised
in a formal complaint. The Department acknowledges that a parent of a
student or an eligible student may have the right to inspect and review
their education records pursuant to 34 CFR 99.10 through 34 CFR 99.12,
and these final regulations do not diminish these rights. As previously
explained, FERPA allows a recipient to share information with the
parties that is directly related to both parties.\1524\ Further, Sec.
106.71 authorizes any party who has suffered retaliation to alert the
recipient by filing a complaint according to the prompt and equitable
grievance procedures for sex discrimination required to be adopted
under Sec. 106.8(c).\1525\
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\1524\ 73 FR 74806, 74832-33 (Dec. 9, 2008).
\1525\ The Department notes that other laws and regulations may
require disclosure of recipient records to the Department, for
instance when the Department investigates allegations that a
recipient has failed to comply with Title IX. E.g., 34 CFR 100.6
(addressing a recipient's obligation to permit the Department access
to a recipient's records and other information to determine
compliance with this part).
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In response to numerous commenters who requested the requirement to
publish training materials, the Department agrees with commenters that
such publication will improve the overall transparency and integrity of
the Title IX grievance process, and thus revises Sec. 106.45(b)(10) to
require recipients to publish on their websites training materials
referenced in Sec. 106.45(b)(1)(iii). The Department believes the
seven-year requirement will not significantly burden recipients, for
whom keeping and publishing materials relevant to training its
employees is good practice in light of the numerous lawsuits recipients
have faced over handling of Title IX allegations. Regarding the request
to clarify that recipients need only update published training
materials when the recipient makes material changes to the materials,
[[Page 30412]]
this provision requires the recipient to publish training materials
which are up to date and reflect the latest training provided to Title
IX personnel.
Although we acknowledge that creating and storing records uses some
resources, publishing training materials on a website and retaining the
notes, reports, and audio or audiovisual recordings or transcripts from
an investigation and any hearing are not cost prohibitive. The
Department believes the recordkeeping requirements are practical and
reasonable. To the extent that commenters' concerns that a recipient
may be unable to publicize its training materials because some
recipients hire outside consultants to provide training, the materials
for which may be owned by the outside consultant and not by the
recipient itself, the Department acknowledges that a recipient in that
situation would need to secure permission from the consultant to
publish the training materials, or alternatively, the recipient could
create its own training materials over which the recipient has
ownership and control.
The Department disagrees that it is ``impossible'' to know what
training records recipients should maintain. Section 106.45(b)(1)(iii)
specifies that recipients must train Title IX Coordinators,
investigators, decision-makers, and persons who facilitate informal
resolutions on specific topics for specific purposes, providing
sufficient basis for a recipient to understand its obligations
regarding retention and publication of materials used to conduct such
training.
The Department does not wish to burden recipients with a
requirement to send the records it maintains under this provision to
the parties. However, parties preparing for a lawsuit or for an OCR
complaint are entitled to receive copies of the evidence directly
related to the allegations raised in a formal complaint,\1526\ the
investigative report,\1527\ and the written determination regarding
responsibility,\1528\ and thus parties to a Title IX grievance process
have relevant information that they may desire to review or submit as
part of a school-level appeal, a lawsuit, or an OCR complaint.
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\1526\ Sec. 106.45(b)(5)(vi).
\1527\ Sec. 106.45(b)(5)(vii).
\1528\ Sec. 106.45(b)(7)(iii).
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The Department declines to require the data collections requested
by commenters concerning Title IX reports and formal complaints. The
Department wishes to correct a lack of due process and neutrality in
the grievance process, among numerous other problems that occurred
under previous Title IX guidance, and believes that prescribing a
consistent framework for recipient responses to sexual harassment will
benefit all individuals involved in reports and formal complaints of
sexual harassment without regard to demographics. The Department notes
that nothing in the final regulations precludes a recipient from
collecting demographic data relating to the recipient's Title IX
reports and formal complaints. Additionally, the Department does not
believe that the concept of ``sealing'' records applies in the context
of most educational institutions, nor does the Department believe that
furthering the purposes of Title IX requires the Department to
micromanage the manner in which recipients keep records. Recipients
will maintain records of their Title IX investigations aimed at
determining a respondent either responsible or not responsible; the
Department does not believe that a recipient's retention of such
records is the equivalent of keeping records of criminal juvenile
delinquency.
The Department disagrees that the provision in Sec.
106.45(b)(10)(ii) requiring a recipient to document the recipient's
conclusion that its response to sexual harassment was not deliberately
indifferent is useless. Although commenters may correctly assert that
recipients ``of course'' believe their responses have been sufficient,
requiring a recipient to document reasons for that conclusion requires
the recipient to evaluate how it has handled any report or formal
complaint of sexual harassment, documenting reasons why the recipient's
response has not been clearly unreasonable in light of the known
circumstances. For example, if a Title IX Coordinator decides to sign a
formal complaint against the wishes of a complainant, the recipient
should document the reasons why such a decision was not clearly
unreasonable and how the recipient believes that it met its
responsibility to provide that complainant with a non-deliberately
indifferent response. To reinforce the obligation imposed on recipients
to offer supportive measures (and engage in an interactive discussion
with the complainant about appropriate, available supportive measures)
in revised Sec. 106.44(a), we have revised Sec. 106.45(b)(10)(ii) to
add that if a recipient does not provide a complainant with supportive
measures, then the recipient must document the reasons why such a
response was not clearly unreasonable in light of the known
circumstances; for example, where a complainant refuses supportive
measures or refuses to communicate with the Title IX Coordinator in
order to know of supportive measures the recipient is offering. The
Department declines to remove the final sentence of Sec.
106.45(b)(10)(ii) because assuring a recipient that the recipient may
provide additional documentation or explanations about the recipient's
responses to sexual harassment after creating its initial records does
not foreclose the ability of a court or administrative agency
investigating a recipient's Title IX compliance to question the
accuracy of a recipient's later-added documentation or explanations,
and where such a court or agency is satisfied that later-added
information was not, for example, fabricated to protect the recipient
from exposure to liability, the later-added information helps such a
court or agency accurately assess the recipient's response to sexual
harassment.
The Department wishes to clarify that, unless ombudspersons have
created records that the Department requires the recipient to maintain
or publish, ombudspersons do not fall under Sec. 106.45(b)(10). The
provision identifies the type of record that must be kept, not the
category of persons whose records do or do not fall under this
provision.
Changes: The Department has removed from Sec. 106.45(b)(10)(i) the
word ``create'' and the phrase ``make available to the complainant and
respondent.'' The Department has also revised the requirement to
maintain records from three years to seven years. In Sec.
106.45(b)(10)(i)(A), the Department has added ``Title IX'' to
``Coordinator'' and added any audio or audiovisual recording or
transcript of a live hearing to the list of records required to be
kept. We have revised Sec. 106.45(b)(10)(i)(D) to add persons who
facilitate informal resolutions to the list of Title IX personnel, and
direct recipients to make materials used to train Title IX personnel
available on the recipient's website or if the recipient does not have
a website then such training materials must be available for public
inspection. We have revised Sec. 106.45(b)(10)(ii) to add the
introductory clause ``For each response required under Sec. 106.44(a)
. . .'' and by increasing the retention period from three years to
seven years. We have further revised Sec. 106.45(b)(10)(ii) by
replacing ``was not clearly unreasonable'' with ``was not deliberately
indifferent'' and by adding that if a recipient does not provide a
complainant with supportive measures, then the recipient must document
the reasons why such a response was not
[[Page 30413]]
clearly unreasonable in light of the known circumstances.
Clarifying Amendments to Existing Regulations
Section 106.3(a) Remedial Action
Comments: One commenter stated favorably that Sec. 106.3(a)
expands the remedial power of the Assistant Secretary in some cases,
such as where a regulatory requirement has been violated, but where no
sex discrimination has occurred. The commenter asserted that this is
important for students who are deprived of due process in a Title IX
proceeding.
Some commenters expressed concern that Sec. 106.3(a) allows the
Assistant Secretary to require a school to remedy any violation of the
Title IX regulations, as opposed to only violations that constitute sex
discrimination. Commenters argued that this will inappropriately shift
the Department toward focusing on procedural requirements which will
result in more complaints being filed with OCR that do not involve
actual sex discrimination but only involve regulatory violations, and
that this will unjustifiably expand the Department's jurisdiction over
complaints brought by parties who were the respondents in underlying
Title IX sexual harassment proceedings.
Discussion: The Department believes that the final regulations
appropriately state that the Assistant Secretary may require recipients
to remedy violations of Title IX regulations, even where the violation
does not itself constitute sex discrimination. The Department,
recipients, and the Supreme Court have long recognized the Department's
statutory authority under 20 U.S.C. 1682 to promulgate rules to
effectuate the purposes of Title IX even when regulatory requirements
do not, themselves, purport to represent a definition of
discrimination.\1529\ In these final regulations, we revise Sec.
106.3(a) to reflect the Department's statutory authority and
longstanding Department practice with respect to requiring recipients
to remedy violations both in the form of sex discrimination and other
violations of our Title IX implementing regulations, including where
the violation does not, itself, constitute sex discrimination. We
emphasize that the Department's remedial powers are not intended to
benefit only respondents; rather, any party can request that the
Department take action against a recipient that has not complied with
Title IX implementing regulations, including these final regulations.
For example, if a recipient fails to offer supportive measures to a
complaint pursuant to Sec. 106.44(a), or fails to send written notice
after dismissing a complainant's allegations under Sec. 106.45(b)(3),
the recipient is in violation of these final regulations and the
Department may require the recipient to take remedial action.
---------------------------------------------------------------------------
\1529\ E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 291-92 (1998) (refusing to allow plaintiff to pursue a claim
under Title IX based on the school's failure to comply with the
Department's regulatory requirement to adopt and publish prompt and
equitable grievance procedures, stating ``And in any event, the
failure to promulgate a grievance procedure does not itself
constitute `discrimination' under Title IX. Of course, the
Department of Education could enforce the requirement
administratively: Agencies generally have authority to promulgate
and enforce requirements that effectuate the statute's non-
discrimination mandate, 20 U.S.C. 1682, even if those requirements
do not purport to represent a definition of discrimination under the
statute.'').
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference in the proposed
regulations to assessment of damages and instead state that remedial
action must be consistent with the Title IX statute, 20 U.S.C. 1682.
Comments: Commenters argued that proposed Sec. 106.3(a) was
unclear because the line between equitable remedies and monetary
damages is sometimes unclear. Commenters asserted that proposed Sec.
106.3(a) left open too many questions and would lead to confusion for
students who file Title IX complaints with OCR. Another commenter
suggested that the final regulations should unambiguously clarify that
a complainant may always bring a Title IX claim in a private right of
action.
Discussion: The Department agrees that the line between equitable
and monetary relief may be difficult to discern, and is persuaded that
attempting to distinguish between damages and equitable relief may
cause confusion for students and for recipients. The current regulatory
provision at 34 CFR 106.3(a) does not distinguish among various types
of remedial action the Department might require of recipients, and the
Supreme Court has noted that the current regulations ``do not appear to
contemplate a condition ordering payment of monetary damages,'' but the
Supreme Court did not indicate what types of remedial action might be
contemplated under 20 U.S.C. 1682.\1530\ In response to commenters'
concerns that proposed Sec. 106.3(a) would cause confusion, we have
revised Sec. 106.3(a) in these final regulations to remove the
proposed reference to ``assessment of damages'' and instead indicate
that the Department's remedial authority is consistent with 20 U.S.C.
1682.
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\1530\ Gebser, 524 U.S. at 288-89 (``While agencies have
conditioned continued funding on providing equitable relief to the
victim, the regulations do not appear to contemplate a condition
ordering payment of monetary damages, and there is no indication
that payment of damages has been demanded as a condition of finding
a recipient to be in compliance with the statute.'') (internal
citation omitted).
---------------------------------------------------------------------------
While the Supreme Court has recognized a judicially implied right
of private action under Title IX,\1531\ these final regulations pertain
to how the Department administratively enforces Title IX, and we
therefore decline to reference private Title IX rights of action in
these regulations implementing Title IX.
---------------------------------------------------------------------------
\1531\ Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979).
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters suggested that monetary damages ought to
be available to complainants through the administrative enforcement
process, particularly where there is no other means of remedying the
sexual harassment that occurred. Commenters argued that damages ought
to include damages for pain and suffering caused by a school's
deliberate indifference. According to these commenters, depriving a
complainant of a damages remedy will leave the complainant--even one
who has established a bona fide Title IX violation--less than
completely whole. Victims of sexual harassment, stated commenters,
might miss work, might incur legal fees, might pay out-of-pocket for
treatment expenses, or incur other monetary losses. Some commenters
asserted that OCR ought to be able to award damages in cases where
monetary relief is necessary to restore a complainant's position.
Discussion: The Department believes that remedial action should be
carefully crafted to restore a victim's equal access to education and
ensure that a recipient comes into compliance with Title IX and its
implementing regulations. This approach has been cited approvingly by
[[Page 30414]]
the Supreme Court.\1532\ The Department's revisions to Sec. 106.3(a)
ensure that the Department may exercise its administrative enforcement
authority to fulfill these goals by requiring remedies consistent with
20 U.S.C. 1682, regardless of whether the remedies are deemed necessary
due to a recipient's discrimination under Title IX or a recipient's
violation of Department regulations implementing Title IX.\1533\
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\1532\ Gebser, 524 U.S. at 289 (``In Franklin [v. Gwinnett Co.
Pub. Sch., 503 U.S. 64, fn. 3 (1992)], for instance, the Department
of Education found a violation of Title IX but determined that the
school district came into compliance by virtue of the offending
teacher's resignation and the district's institution of a grievance
procedure for sexual harassment complaints.'').
\1533\ The Title IX statute at 20 U.S.C. 1682 provides in
relevant part that any agency that disburses Federal financial
assistance to a recipient is ``authorized and directed to effectuate
the provisions of section 1681 of this title [i.e., Title IX's non-
discrimination mandate] with respect to such program or activity by
issuing rules, regulations, or orders of general applicability which
shall be consistent with achievement of the objectives of the
statute authorizing the financial assistance in connection with
which the action is taken. . . . Compliance with any requirement
adopted pursuant to this section may be effected (1) by the
termination of or refusal to grant or to continue assistance under
such program or activity to any recipient as to whom there has been
an express finding on the record, after opportunity for hearing, of
a failure to comply with such requirement, . . . or (2) by any other
means authorized by law: Provided, however, That no such action
shall be taken until the department or agency concerned has advised
the appropriate person or persons of the failure to comply with the
requirement and has determined that compliance cannot be secured by
voluntary means.''
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters stated that proposed Sec. 106.3(a)
inappropriately narrowed the remedies available for sexual harassment,
and that any effort to take rights away from victims was troubling.
These commenters asserted that the Department ought to be using its
power to expand protections for victims, not narrow them. Some
commenters stated that preventing OCR from awarding monetary damages
would reduce the incentive to report sex discrimination, meaning that
it was more likely to continue unabated. Other commenters argued that
monetary damages serve as an effective deterrent to a school not taking
sex discrimination allegations seriously. One commenter asserted that
this was part of a nefarious motive on the part of Secretary Betsy
DeVos to hurt victims of discrimination, and not an effort to help the
American people.
Discussion: The Department's purpose and motive in these final
regulations is to implement legally binding obligations governing
recipients' responses to sexual harassment so that recipients respond
supportively to complainants and fairly to both complainants and
respondents and operate education programs and activities free from sex
discrimination, including in the form of sexual harassment. The
Department intends to continue vigorously enforcing recipients' Title
IX obligations. We are persuaded by commenters that specifying the type
of remedies that OCR may require of recipients in administrative
enforcement risks confusion for students, employees, and recipients,
including as to whether the Department intends to continue vigorously
enforcing recipients' Title IX obligations. We have therefore revised
Sec. 106.3(a) to clarify that the Department may require a recipient
to take remedial action, consistent with the Department's regulatory
authority under 20 U.S.C. 1682, whenever a recipient has discriminated
in violation of Title IX or whenever a recipient has violated the
Department's regulations implementing Title IX.
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters asserted that the withdrawal of all
Federal funds happens so rarely that the payment of monetary damages is
the only true way to get at a school's pocketbook for ignoring sex
discrimination. Commenters argued that some schools will read Sec.
106.3(a) too broadly, and deny even equitable relief to complainants,
who then may never file with OCR and will simply be denied relief to
which they are entitled. One commenter suggested that the Equal
Employment Opportunity Commission has made public statements adopting
the viewpoint that the best way to ensure compliance with non-
discrimination law is to make employers pay damages for violating those
laws. Commenters stated that if monetary damages cannot be a part of a
resolution agreement, this would have the effect of increasing and
encouraging sexual assault. It would also mean, commenters argued, that
complainants could not obtain necessary treatment to respond to their
trauma from the very misconduct that the recipient caused or
exacerbated.
Discussion: The Department acknowledges that the termination of
Federal financial assistance is rare, but this is because the statutory
enforcement scheme that Congress set forth in 20 U.S.C. 1682 recognized
termination of Federal funds as a ``severe'' remedy that should serve
as a ``last resort'' when other, less severe measures have
failed.\1534\ Loss of Federal funding to a school district, college, or
university is a serious consequence that may have devastating results
for a recipient and the educational community the recipient exists to
serve.\1535\ Termination of Federal funds as a remedy is statutorily
intended to serve as a ``last resort'' in order to ``avoid diverting
education funding from beneficial uses'' unless that severe remedy is
necessary.\1536\ The fact that the severe remedy of terminating Federal
funds is appropriately intended and utilized as a last resort does not
preclude the Department from effectively enforcing Title IX by securing
voluntary resolution agreements with recipients who have violated Title
IX or its
[[Page 30415]]
implementing regulations.\1537\ The Department will continue to
effectively enforce Title IX, including these final regulations, in
furtherance of Title IX's non-discrimination mandate.
---------------------------------------------------------------------------
\1534\ Cannon, 441 U.S. at 705, fn. 38 (``Congress itself has
noted the severity of the fund-cutoff remedy and has described it as
a last resort, all else--including `lawsuits'--failing.''); id. at
704-05 (describing termination of Federal financial assistance as
``severe'' and stating that it is not always the appropriate means
of furthering Title IX's non-discrimination mandate where ``an
isolated violation has occurred.''); see also Nancy Chi Cantalupo,
Burying Our Heads in The Sand: Lack of Knowledge, Knowledge
Avoidance, and the Persistent Problem of Campus Peer Sexual
Violence, 43 Loy. Univ. Chi. L. J. 205, 241 (2011) (referring to the
ability of OCR to terminate Federal funding as the ``nuclear
option'').
\1535\ ``Federal financial assistance'' includes, for example,
``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.'' 34 CFR 106.4(g)(1)(ii); see also Pamela W. Kernie,
Protecting Individuals from Sex Discrimination: Compensatory Relief
Under Title IX of the Education Amendments of 1972, 67 Wash. L. Rev.
155, 166 (1992) (``Indeed, the fund-termination remedy, if applied,
might actually prove detrimental to the very people Title IX is
designed to protect: if an educational program's funds are
terminated, future participants in the program will be denied the
benefits of much-needed federal financial assistance.'').
\1536\ Gebser, 524 U.S. at 289 (``Presumably, a central purpose
of requiring notice of the violation to the appropriate person and
an opportunity for voluntary compliance before administrative
enforcement proceedings [to terminate Federal funding] can commence
is to avoid diverting education funding from beneficial uses where a
recipient was unaware of discrimination in its programs and is
willing to institute prompt corrective measures.'').
\1537\ Catharine A. MacKinnon, In Their Hands: Restoring
Institutional Liability for Sexual Harassment in Education, 125 Yale
L. J. 2038, fn. 102 (2016) (noting that the fact that OCR has not
actually terminated a school's Federal funds ``only means schools,
knowing OCR means business, have complied, not that OCR is unwilling
to use this tool.'').
---------------------------------------------------------------------------
The Equal Employment Opportunity Commission enforces non-
discrimination laws, including Title VII, that provide specific limits
on the amount of compensatory and punitive damages that a person can
recover. For example, Title VII expressly limits the amount of
compensatory and punitive damages that a person may recover against an
employer with more than 500 employees to $300,000, in 20 U.S.C.
1981a(b)(3)(D). Title IX, unlike Title VII, does not expressly include
any reference to such compensatory and punitive damages, nor does any
statute address the amount of compensatory and punitive damages that
may be awarded under Title IX. Instead, Congress expressly references
an agency's suspension or termination of Federal financial assistance,
which is a severe consequence, and also allows a recipient to secure
compliance with its regulations through any ``other means authorized by
law''. The Department will therefore continue to enforce Title IX
consistent with 20 U.S.C. 1682, and not by reference to the enforcement
schemes set forth in other laws. 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.\1538\
---------------------------------------------------------------------------
\1538\ See Dana Bolger, Gender Violence Costs: Schools'
Financial Obligations Under Title IX, 125 Yale L. J. 2106, 2120-21
(2016) (noting that ``OCR has required financial reimbursement in a
surprisingly small number of its enforcement decisions'' and arguing
that the Department should more often order schools to financially
reimburse survivors for costs incurred due to the school's Title IX
violations rather than permitting ``the same schools that violated
the survivors' rights to determine what remedies are appropriate'');
see also Gebser, 524 U.S. at 288-89 (noting that while 34 CFR
106.3(a) does not appear to authorize an agency to order monetary
damages as a remedy, and agencies generally seem to order equitable
relief (for instance, termination of a teacher who committed sexual
harassment), the absence of express reference to monetary damages in
20 U.S.C. 20 and in 34 CFR 106.3 did not imply that monetary damages
could not be an appropriate remedy in a private lawsuit under Title
IX).
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters asserted that proposed Sec. 106.3(a) was
inconsistent with the statutory provisions of Title IX, since Title IX
does not limit the types of relief that OCR may provide to
complainants. Other commenters stated that the proposed rules would
shift existing policy away from how Congress and the agency have
interpreted the current regulatory provisions for the past 50 years,
arguing that Title VI contains an express limit on relief, allowing
only ``preventive relief'' under 42 U.S.C. 2000a-3 while Title IX does
not contain such limiting language in its remedial provisions, at 20
U.S.C. 1682, which allows for relief by ``any other means authorized by
law''. Commenters referred to resolution agreements where OCR has
seemingly awarded monetary damages remedies.
Discussion: As discussed above, the Department is persuaded by
commenters' concerns that because Title IX, 20 U.S.C. 1682, does not
expressly approve or disapprove of monetary damages as one of the
``other means authorized by law'' which the Department may use to
secure compliance under the Department's administrative enforcement
authority, the Department should not differentiate in Sec. 106.3(a)
among potential remedies that may be deemed necessary to ensure that a
recipient complies with Title IX and its implementing regulations. We
have revised Sec. 106.3(a) to expressly provide that discrimination
under Title IX, or violations of the Department's Title IX regulations,
may require a recipient to take remedial action, and that such remedial
action ordered by the Department in an enforcement action must be
consistent with 20 U.S.C. 1682. The Department notes that actions that
some commenters characterize as OCR requiring a recipient to pay
``monetary damages'' may be viewed as financial compensation that OCR
requires a recipient to pay to a victim of sex discrimination as a form
of equitable relief, which does not necessarily constitute ``monetary
damages.'' However, the revisions to Sec. 106.3(a) affirm that the
Department will continue to enforce Title IX and its implementing
regulations vigorously by using all tools at the Department's disposal
under 20 U.S.C. 1682.
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters stated that the proposed rules' reliance
on Supreme Court case law is faulty, because those cases arose in the
context of private rights of action in civil suits, and not the
administrative context. Another commenter stated that OCR already does
not award monetary damages, and so Sec. 106.3 is unnecessary, but
could engender confusion, particularly where equitable remedies
involving monetary payments are necessary to make a complainant whole.
Another commenter asserted that there is a discord between changing the
legal standards in other parts of the proposed rules to more closely
mirror the legal standards in civil suits, while expressly barring
complainants from obtaining the relief that they would otherwise be
entitled to in civil suits.
Discussion: The Department is persuaded by commenters' concerns
that proposed Sec. 106.3(a) may have had the unintended effect, or
perceived effect, of restricting the Department's ability to vigorously
enforce Title IX through all ``means authorized by law,'' \1539\ may
have caused unnecessary confusion on topics such as whether the
Department's administrative enforcement of Title IX pursues the same
goals as private lawsuits under Title IX (i.e., enforcement of Title
IX's non-discrimination mandate), whether financial compensation when
necessary to remedy a recipient's discrimination against individual
victims would no longer be part of the Department's enforcement
efforts, and may have indicated tension with the Department's approach
to adopting and adapting the three-part Gebser/Davis framework \1540\
(which the Supreme Court developed in the context of private litigation
subjecting schools to monetary damages). To address commenters'
concerns and clarify the Department's intent to vigorously enforce
Title IX, we have revised Sec. 106.3(a) to state that the Department
may order remedial action as necessary to correct discrimination
[[Page 30416]]
under Title IX or violations of the Department's Title IX regulations,
consistent with 20 U.S.C. 1682.
---------------------------------------------------------------------------
\1539\ 20 U.S.C. 1682.
\1540\ ``Adoption and Adaption of the Supreme Court's Framework
to Address Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Commenters stated that because the current regulations
need clarity and modification, it is good that the proposed rules
addressed the remedies issue. Some commenters stated that the proposed
rules set forth a fair and reliable procedure with respect to damages
and remedies. Commenters who worked for postsecondary institutions
expressed support for proposed Sec. 106.3(a) as a significant
improvement upon the current Title IX landscape. Some commenters on
behalf of institutions expressed appreciation for the focus on remedial
action that does not include the assessment of damages against a
recipient because some recipients are small, rural schools with limited
resources, and would prefer to use those resources to remedy violations
rather than pay damages. Commenters asserted that proposed Sec.
106.3(a) helps recipient institutions avoid unnecessary burdens.
Commenters stated that they supported the limitation of remedial action
to exclude assessment of damages against the recipient because parties
seeking monetary damages may always avail themselves of the courts,
which are better equipped than OCR to assess damages to compensate a
victim for harms like emotional distress. One commenter asserted that
proposed Sec. 106.3(a) would appropriately focus Title IX enforcement
on securing equitable relief and bringing schools into compliance with
Title IX. Commenters offered that it is appropriate for OCR to focus
exclusively on equitable relief and bringing schools into compliance,
as opposed to compensating victims.
Discussion: The Department appreciates some commenters' support for
the intention of proposed Sec. 106.3(a), to distinguish between
monetary damages and equitable relief in determining remedial action
the Department should pursue in its administrative enforcement actions.
However, for the reasons discussed above, the Department is persuaded
by the concerns of other commenters and we have revised Sec. 106.3(a)
to remove reference to assessment of damages.
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters argued that proposed Sec. 106.3(a)
conveyed that the Department will not be enforcing Title IX at all and
will look the other way at a recipient's failure to respond to
allegations of sexual harassment. Another commenter suggested that the
proposed rules ought to state that all remedial action should be
dedicated to minimizing, to the extent possible, harm done to the
complainant. One commenter argued that proposed Sec. 106.3 would
create an inconsistency with other laws and regulations that OCR
enforces, such as Title VI or Section 504.
One commenter argued that Sec. 106.3(a) is a change in position
from prior Department guidance that contemplates monetary relief, is in
tension with a Department of Justice manual about Title IX,\1541\ and
could potentially put the Department's Title IX enforcement practices
in tension with other executive branch agencies that enforce Title IX.
The commenter asserted that it is strange for a complainant's scope of
relief to change depending on the agency with which the complaint is
filed. The commenter asserted that such a significant shift ought to be
more fulsomely explained by the Department. Additionally, the commenter
stated that the commenter had filed a Freedom of Information Act (FOIA)
request but had not yet received a response, and that the proposed
rules ought to be withdrawn until the commenter had opportunity to
review the FOIA response and comment further. The same commenter argued
that the proposed rules would pose anomalous situations that would
strain OCR's ability to separate equitable relief involving payments of
money, from non-equitable relief in the form of monetary damages. The
commenter raised the scenario of a complainant that suffers damages
caused by a third party; in the hypothetical, a student is sexually
harassed at their school and reports the incident, and later the
student obtains a scholarship at another school, and if the first
school retaliates against the reporting student by interfering with the
scholarship so the student loses the scholarship, the first school may
or may not be liable for the loss of the scholarship under revised
Sec. 106.3(a), depending on whether OCR construes that relief as
monetary damages or equitable relief.
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\1541\ Commenters cited: U.S. Dep't. of Justice, Title IX Legal
Manual ``VIII Private Right of Action and Individual Relief through
Agency Action, C. Recommendations for Agency Action.''
---------------------------------------------------------------------------
Discussion: For reasons discussed above, the Department is
persuaded by commenters' concerns that proposed Sec. 106.3(a) could
cause unnecessary confusion, such as about how the Department intends
to enforce Title IX and whether the Department intends to continue
vigorously enforcing Title IX administratively. We have revised Sec.
106.3(a) to clarify that the Department will require remedial action
for a recipient's discrimination under Title IX or a recipient's
violations of Title IX regulations, in a manner consistent with 20
U.S.C. 1682. In light of these revisions, the Department does not
believe it is necessary to analyze prior Department guidance as to
whether the Department's past practice has, or has not, been to impose
monetary damages for Title IX violations, and for similar reasons there
is no conflict between Sec. 106.3(a) in the final regulations, and the
Department of Justice Title IX Manual referenced by commenters, or
among the Department's approach to remedial action and the approach of
other Federal agencies, each of which is subject to the same provision
in the Title IX statute (20 U.S.C. 1682) regarding administrative
enforcement of Title IX, to which Sec. 106.3(a) now refers. We note
that the sufficiency of the Department's response to any individual
FOIA request is beyond the scope of this rulemaking, and decline to
comment on the content of such a request or its relationship to these
final regulations. The revisions to Sec. 106.3(a) additionally
ameliorate the commenter's concern raised in a hypothetical, that a
dividing line between equitable relief and monetary damages could lead
to the Department being constrained from requiring a recipient to, for
example, reimburse a student for the value of a lost scholarship under
circumstances where such remedial action is necessary to remediate the
effects of a recipient's discrimination against an individual student.
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
[[Page 30417]]
Comments: Some commenters suggested that if changes to Sec. 106.3
are made at all, the changes ought to strengthen the penalties that can
be adjudicated against actual perpetrators of sexual harassment,
including students. One commenter suggested that students who engage in
sexual harassment ought to themselves be liable for monetary damages as
part of OCR's enforcement practices. Additionally, this commenter
argued that OCR ought to make students who engage in sexual harassment
repay grants given to them by the Federal government, and permanently
bar such students from applying for any financial assistance in the
future. Another commenter suggested that the Department ought to bar
students who commit sexual harassment from attending any other
postsecondary institution in the future.
Discussion: Title IX applies to recipients of Federal financial
assistance operating education programs or activities.\1542\ Title IX
does not apply as a direct bar against perpetration of sexual
harassment by individual respondents; rather, Title IX requires
recipients to operate education programs and activities free from sex
discrimination. When a recipient knowingly, deliberately refuses to
respond to sexual harassment, such response is a violation of Title
IX's non-discrimination mandate, and a recipient's failure to respond
appropriately in other ways mandated by these final regulations
constitutes a violation of the Department's regulations implementing
Title IX.\1543\ The Department will vigorously enforce Title IX's non-
discrimination mandate and the obligations contained in these final
regulations to ensure recipients' compliance.
---------------------------------------------------------------------------
\1542\ 20 U.S.C. 1681(a).
\1543\ See discussion in the ``Adoption and Adaption of the
Supreme Court's Framework to Address Sexual Harassment'' section of
this preamble.
---------------------------------------------------------------------------
These final regulations clarify the conditions that trigger a
recipient's legal obligations with respect to sexual harassment and
enforcement of Title IX, and these final regulations are focused on
remedial actions the recipient must take, rather than on punitive
actions against individuals who perpetrate sexual harassment.\1544\
These final regulations explain the circumstances under which a
recipient must provide remedies to victims of sexual harassment, and
leave decisions about appropriate disciplinary sanctions imposed on
respondents found responsible for sexual harassment within the sound
discretion of the recipient.\1545\ These final regulations do not
impact eligibility of a student for Federal student aid or the
eligibility of an individual to apply for Federal grants. The Title IX
statute authorizes the Department to enforce Title IX by terminating
Federal financial assistance provided to a recipient operating
education programs or activities--not by terminating Federal financial
aid to individual students. As discussed previously, these final
regulations leave sanctions and punitive consequences that a recipient
chooses to take against a respondent found responsible for sexual
harassment in the sound discretion of the recipient. Nothing in these
final regulations precludes a recipient from barring such a respondent
found responsible for sexual harassment from continuing enrollment or
from re-enrolling with the recipient, or from including a notation on
the student's transcript with the intent or effect of prohibiting the
respondent from future enrollment with a different recipient.\1546\
---------------------------------------------------------------------------
\1544\ Id.
\1545\ Id.
\1546\ For further discussion of transcript notations, see the
``Transcript Notations'' subsection of the ``Determinations
Regarding Responsibility'' subsection of the ``Section 106.45
Recipient's Response to Formal Complaints'' section of this
preamble.
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have removed the reference to assessment
of damages and instead state that remedial action must be consistent
with the Title IX statute at 20 U.S.C. 1682.
Comments: Some commenters asserted that the proposed rules ought to
eliminate the ability of a recipient to engage in affirmative action
absent any finding of a violation; commenters referenced a provision
under 34 CFR 106.3(b) that the proposed rules did not propose to alter.
Additionally, some commenters stated that the proposed rules ought to
more clearly define what monetary damages are, since monetary payments
may nevertheless be equitable in nature, in some circumstances.
Commenters suggested that the Assistant Secretary for Civil Rights
ought to be more constrained in assessment of remedies than proposed
Sec. 106.3(a) set forth and should not require that schools engage in
disciplinary or exclusionary processes in order to remedy sexual
harassment. Commenters argued that the Assistant Secretary should only
have jurisdiction to require supportive measures for victims of sexual
harassment in order to restore access to education and bring a
recipient into compliance with Title IX.
Discussion: In the NPRM, the Department proposed revisions to Sec.
106.3(a), which concerns remedial action, and did not propose changing
the provisions of 34 CFR 106.3(b), which concerns affirmative action,
and the Department declines to revise 34 CFR 106.3(b) in these final
regulations.
The Department disagrees that the Department lacks authority to
require recipients to investigate and adjudicate sexual harassment
allegations in order to determine whether remedies are necessary to
restore or preserve the equal educational access of a victim of sexual
harassment, including deciding whether disciplinary sanctions are
warranted against a respondent found responsible for sexual harassment.
Since 1975, Department regulations have required recipients to adopt
and publish grievance procedures to address student and employee
complaints of sex discrimination,\1547\ and through guidance since 1997
the Department has interpreted this regulatory requirement to apply to
complaints of sexual harassment. Adopting and publishing a grievance
process to address sexual harassment as a form of sex discrimination
prevents instances in which a recipient violates Title IX by failing to
provide remedies to victims of sexual harassment, falling squarely
within the Department's authority to promulgate rules that further
Title IX's non-discrimination mandate.\1548\ As previously discussed,
with respect to disciplinary sanctions, the Department, like the
courts, will ``refrain from second guessing the disciplinary decisions
made by school administrators'' \1549\ because school administrators
are best positioned to determine the appropriate discipline to be
imposed. The final regulations remove reference to ``assessment of
damages'' in Sec. 106.3(a), and thus the Department declines to
provide a definition of ``monetary damages'' in order to clarify when
payments of money are part of equitable relief, versus damages.
---------------------------------------------------------------------------
\1547\ Compare 34 CFR 106.9 with Sec. 106.8(c).
\1548\ ``Role of Due Process in the Grievance Process'' section
of this preamble.
\1549\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648
(1999). Disciplinary sanctions, however, cannot be retaliatory or
discriminatory on the basis of sex. Sec. 106.71(a); Sec.
106.45(a).
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.3(a) to clarify that the
Department may require a recipient to take remedial action for
discriminating in violation of Title IX or for violating Title IX
implementing regulations. We have
[[Page 30418]]
removed the reference to assessment of damages and instead state that
remedial action must be consistent with the Title IX statute at 20
U.S.C. 1682.
Section 106.6(d)(1) First Amendment
Comments: A number of commenters expressed support for Sec.
106.6(d) generally, including Sec. 106.6(d)(1) regarding the First
Amendment. Other commenters argued the provision is necessary to
prevent a chilling effect on free speech. Other commenters supported
this provision because they believed that Title IX should conform with
Supreme Court rulings on free speech. Commenters argued that the
protection of free speech on campuses is important and that this
provision helps prevent Title IX enforcement from chilling free speech.
Commenters argued that Sec. 106.6(d) is necessary in light of the
growing number of instances in which institutions have violated
students' rights in campus Title IX adjudications. Commenters expressed
support for the saving clause nature of this provision because of
concerns that Title IX has a disproportionate impact on men of color
and other disadvantaged demographic groups.
Some commenters requested more clarity on the application of the
saving clause to specific situations. Commenters requested that OCR
``provide additional guidance or clarity on what responsibilities
school districts have with respect to the First Amendment and other
constitutional protections.'' One commenter requested guidance on the
parameters of free speech protections. Other commenters supported the
saving clause but requested that the Department modify the language to
provide greater protection for free speech, such as providing explicit
protection of academic freedom, or such as changing the provision to
not just state that the regulations do not require a recipient to
restrict constitutional rights, but that the regulations do not permit
deprivations of constitutional rights. Some commenters expressed
confusion as to whether the saving clauses in 106.6(d) cover recipients
that are not government actors.
A number of commenters opposed the saving clause because they
believed it is unnecessary.
One commenter opposed the saving clause due to the concern that it
could be seen as calling for the courts to give greater weight to the
listed constitutional protections than a court may have given
otherwise. As an example, the commenter posed a hypothetical case where
First Amendment rights are implicated; without the addition of Sec.
106.6(d)(1), a court could give different weight to factors in its
factored-analysis as to whether a constitutional violation occurred but
with the saving clause in the proposed rules, the court may conclude
that the Department has determined that greater weight should be given
to First Amendment protections than the other factors used in its
making of a determination of a constitutional violation.
One commenter argued that the saving clause is an unwarranted and
harmful restriction on Title IX. The commenter reasoned that under
Title IX's non-discrimination mandate the Department could, for
example, reasonably determine that Title IX requires that a trigger
warning be given to students before the start of any academic class
discussing topics involving sexual violations, so that students could
avoid being subjected to the traumatizing class discussion; the
commenter argued that such a requirement is constitutional and could be
necessary under Title IX, yet because of Sec. 106.6(d) such a
reasonable, constitutional requirement (because even First Amendment
speech rights are not unlimited, inasmuch as yelling ``fire'' in a
crowded theater has long been deemed unprotected speech) to promote
Title IX's purposes might be forgone by the Department. On the other
hand, another commenter argued that classroom discussions about
sensitive topics involving sex and sexuality are protected by academic
freedom--in the teacher or professor's judgment--even if such topics
are offensive and uncomfortable to some students.
Discussion: The Department added Sec. 106.6(d)(1) to act as a
saving clause.\1550\ Its purpose is to ensure the Department is
promoting non-discrimination enforcement consistent with constitutional
protections, and with First Amendment protections of free speech and
academic freedom in particular. Due to significant confusion regarding
the intersection of individuals' rights under the U.S. Constitution
with a recipient's obligations under Title IX, the proposed regulations
clarify that these regulations do not require a recipient to infringe
upon any individual's rights protected under the First Amendment.
---------------------------------------------------------------------------
\1550\ ``Saving Clause,'' Black's Law Dictionary (11th ed. 2019)
(``A statutory provision exempting from coverage something that
would otherwise be included. A saving clause is generally used in a
repealing act to preserve rights and claims that would otherwise be
lost.'').
---------------------------------------------------------------------------
The Department disagrees with the commenter who argued that Sec.
106.6(d)(1) will chill Title IX enforcement without more precise
language. Rather, stating that nothing in regulations implementing
Title IX requires restriction of constitutional rights protects robust
Title IX enforcement by clarifying that furthering Title IX's non-
discrimination mandate does not conflict with constitutional
protections. Failure to recognize and respect principles of free speech
and academic freedom has led to overly broad anti-harassment policies
that have resulted in chilling and infringement of constitutional
protections.\1551\
---------------------------------------------------------------------------
\1551\ ``Sexual Harassment'' subsection of the ``Section 106.30
Definitions'' section of this preamble.
---------------------------------------------------------------------------
The Department disagrees with commenters who argued that additional
language or guidance is necessary in Sec. 106.6(d)(1). We believe that
Sec. 106.6(d)(1) is clear without further explanation. The Department
also includes an explanation of First Amendment law and the interaction
of First Amendment law with these final regulations throughout the
preamble; for example, in the ``Davis standard generally'' subsection
of the ``Prong (2) Davis standard'' subsection of the ``Sexual
Harassment'' subsection in the ``Section 106.30 Definitions'' section,
the Department includes discussion about how the second prong of the
definition of sexual harassment in Sec. 106.30, with language from
Davis, interacts with the First Amendment. The Department will abide by
courts' rulings as to the scope of the First Amendment.
In response to requests from commenters for stronger First
Amendment protections in these final regulations, the Department has
added additional language in the final regulations, addressing
circumstances under which First Amendment concerns often intersect with
Title IX policies and procedures. For example, the Department has added
Sec. 106.71 (prohibiting retaliation) to state that the exercise of
rights protected under the First Amendment does not constitute
retaliation. The final regulations also add language in Sec. 106.44(a)
to state that the Department may not deem a recipient to have satisfied
the recipient's duty to not be deliberately indifferent based on the
recipient's restriction of rights protected under the U.S.
Constitution, including the First Amendment. The Department reinforces
Sec. 106.6(d) in the context of a recipient's non-deliberately
indifferent response in Sec. 106.44(a) and evaluation of retaliation
under new Sec. 106.71 to caution recipients that the Department will
not
[[Page 30419]]
require a recipient to restrict constitutional rights as a method of
Title IX compliance. Because academic freedom is well understood to be
protected under the First Amendment, the Department declines to
expressly reference ``academic freedom'' in Sec. 106.6(d)(1), but that
provision applies to all rights protected under the First Amendment.
Title IX, including Sec. 106.6(d), applies to all recipients of
Federal financial assistance, including private actors. The language is
intended to clarify that, under Title IX regulations, recipients--
including private recipients--are not obligated by Federal law under
Title IX to restrict free speech or other rights that the Federal
government could not restrict directly. Accordingly, the government may
not compel private actors to restrict conduct that the government
itself could not constitutionally restrict.\1552\
---------------------------------------------------------------------------
\1552\ Peterson v. City of Greenville, 373 U.S. 244, 248 (1963);
Truax v. Raich, 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------
The Department agrees with commenters who stated that Sec.
106.6(d)(1) will ensure that nothing in these final regulations is
interpreted to violate the First Amendment to the U.S. Constitution,
and we agree that this provision is important to prevent a chilling
effect on free speech. As discussed in more detail in the ``Sexual
Harassment'' subsection of the ``Section 106.30 Definitions'' section
of this preamble, overly broad definitions applied in anti-harassment
codes of conduct have led to confusion about how to enforce non-sex
discrimination laws like Title IX consistent with First Amendment
protections, and we therefore disagree that Sec. 106.6(d)(1) is
unnecessary.
The Department disagrees that Sec. 106.6(d)(1) will change the way
courts interpret the Constitution or Title IX. These types of clauses
are routinely included in regulations to note similar issues, and we
have no reason to believe including a saving clause such as Sec.
106.6(d) would encourage courts to apply the Constitution differently
or more broadly than they otherwise would. The Department believes that
Sec. 106.6(d)(1) acts as a saving clause to ensure that institutions
do not violate the First Amendment's requirements, but the scope and
meaning of First Amendment rights and protections are not affected by
these final regulations.
The Department disagrees that these final regulations including
Sec. 106.6(d)(1), unnecessarily and harmfully prohibit the Department
from promulgating regulations under Title IX that are constitutionally
permissible. Contrary to the commenter's assertions, these final
regulations clarify that part 106 of title 34 of the Code of Federal
Regulations in no way requires the restriction of rights that would
otherwise be protected from government action by the First Amendment.
The U.S. Constitution applies to the Department as a Federal government
agency, and the Department cannot enforce Title IX (e.g., interpret
Title IX and promulgate rules enforcing the purposes of Title IX) in a
manner that requires restricting constitutional rights protected from
government action by the First Amendment. These final regulations
neither require nor prohibit a recipient from providing a trigger
warning prior to a classroom discussion about sexual harassment
including sexual assault; Sec. 106.6(d)(1) does assure students,
employees (including teachers and professors), and recipients that
ensuring non-discrimination on the basis of sex under Title IX does not
require restricting rights of speech, expression, and academic freedom
guaranteed by the First Amendment. Whether the recipient would like to
provide such a trigger warning and offer alternate opportunities for
those students fearing renewed trauma from participating in such a
classroom discussion is within the recipient's discretion. However,
nothing in Sec. 106.6(d) restricts the Department from issuing any
rule effectuating the purpose of Title IX that the Department would
otherwise be permitted to issue; in other words, with or without Sec.
106.6(d), the Department as a Federal government agency is required to
abide by the First Amendment, and would not be permitted to issue a
rule that restricts constitutional rights, whether or not a saving
clause such as Sec. 106.6(d) exists to remind recipients that Title IX
enforcement never requires any recipient to restrict constitutional
rights.
Changes: None.
Section 106.6(d)(2) Due Process
Comments: A number of commenters expressed general support for
Sec. 106.6(d)(2) and the protection of due process of law. Commenters
supported the provision because they asserted that there is confusion
now as to how Title IX affects individual rights, and that this
provision provides clarity. Commenters supported this provision in
light of actions of educational institutions that commenters believed
have violated the constitutional rights of students in Title IX
proceedings; some commenters asserted that due process deprivations
were caused by policies implemented under the withdrawn 2011 Dear
Colleague Letter.
Some commenters expressed confusion as to whether the saving
clauses in Sec. 106.6(d) cover recipients that are not government
actors.
Commenters requested clarification of Sec. 106.6(d)(2), asserting
that the Department must comply with Executive Order 13563, which calls
for regulations to reduce uncertainty and be written in plain language.
A number of commenters opposed Sec. 106.6(d)(2). Commenters
opposed the saving clause, arguing that it is unnecessary. Other
commenters opposed this provision because they argued that it
inappropriately pits Title IX's civil rights mandate against the
Constitution, when no such conflict exists. Other commenters opposed
this provision, asserting that schools are not courts of law.
Other commenters argued that Sec. 106.6(d)(2) could be seen by the
courts as calling for the courts to give greater weight to the listed
constitutional protections than courts may give without this provision.
Other commenters opposed this provision stating that it would be
burdensome on institutions.
Discussion: The Department added Sec. 106.6(d)(2) to act as a
saving clause. The Department included this provision to promote
enforcement of Title IX's non-discrimination mandate consistent with
constitutional protections.\1553\ Due to significant confusion
regarding the intersection of individuals' rights under the U.S.
Constitution with a recipient's obligations under Title IX, the
Department believes that this provision will help clarify that nothing
in regulations implementing Title IX requires a recipient to infringe
upon any individual's rights protected under the Due Process Clauses of
the U.S. Constitution.
---------------------------------------------------------------------------
\1553\ 83 FR 61480.
---------------------------------------------------------------------------
As noted previously, some commenters expressed confusion as to
whether the saving clauses in Sec. 106.6(d) cover recipients that are
not government actors. The Department reiterates that Title IX,
including Sec. 106.6(d), applies to all recipients of Federal funding,
including private actors. The language is intended to make clear that,
under Title IX regulations, recipients--including private recipients--
are not obligated to choose between complying with Title IX and
respecting constitutional rights. Section 106.6(d)(2) clarifies that no
recipient, including a private recipient, is required to take actions
constituting deprivation of rights secured by the Constitution that the
Federal government could not take directly. The government may not
compel private
[[Page 30420]]
actors to restrict conduct that the government itself could not
constitutionally restrict.\1554\
---------------------------------------------------------------------------
\1554\ Peterson v. City of Greenville, 373 U.S. 244 (1963);
Truax v. Raich, 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------
The Department believes it has complied with Executive Order 13563
with respect to Sec. 106.6(d)(2).\1555\ We believe that this provision
is clear, uses plain language, and is tailored to the objective of
clarifying that nothing in these regulations requires a recipient to
infringe upon any individual's rights protected under the Due Process
Clauses of the Fifth or Fourteenth Amendments. We intend for Sec.
106.6(d)(2) to reduce uncertainty about the interaction between these
final regulations and recipients' due process obligations. The
Department agrees with commenters who supported Sec. 106.6(d)(2) as
necessary to protect the constitutional rights of complainants and
respondents in Title IX proceedings. The Department also disagrees that
Sec. 106.6(d)(2) pits Title IX's civil rights mandate against the
Constitution; to the contrary, this provision helps clarify that there
is no conflict between enforcement of Title IX and respect for
constitutional rights.
---------------------------------------------------------------------------
\1555\ 83 FR 61462, 61483-84.
---------------------------------------------------------------------------
The Department disagrees that Sec. 106.6(d)(2) could be seen by
the courts as calling for giving greater weight to the listed
constitutional protections than courts may have otherwise given. These
types of saving clauses are routinely included in regulations to note
similar issues, and we have no reason to believe including one here
would encourage courts to apply the Constitution differently or more
broadly than they otherwise would. Nothing in these final regulations
alters the meaning or scope of constitutional rights or protections,
but rather acknowledges that whatever the meaning and scope of a
constitutional right, that right never needs to be restricted to comply
with Title IX regulations.
We agree that schools are not courts of law; however, the Due
Process Clauses of the Fifth and Fourteenth Amendments do not just
apply in judicial proceedings. Constitutional protections such as the
right to due process of law apply to the actions of governmental
actors, including governmental decisions in administrative hearings
which deprive individuals of liberty or property interests.\1556\ For
example, when a State university imposes a serious disciplinary
sanction, it must comply with the terms of the Due Process Clause of
the Fourteenth Amendment.\1557\ For private institutions receiving
Federal financial assistance, the Department cannot require such
institutions to deprive persons of rights protected under the U.S.
Constitution in order to comply with these final regulations
implementing Title IX.\1558\
---------------------------------------------------------------------------
\1556\ E.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
\1557\ Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S.
179, 192 (1988).
\1558\ Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970)
(government is responsible for discriminatory act of private party
when government, by its law, has compelled the act).
---------------------------------------------------------------------------
Changes: None.
Section 106.6(d)(3) Other Constitutional Rights
Comments: A number of commenters expressed support for Sec.
106.6(d)(3). One commenter who opposed the NPRM in general agreed with
Sec. 106.6(d)(3). Commenters supported Sec. 106.6(d)(3) due to their
own experiences with Title IX procedures and adjudications, stating
that such processes lacked basic due process protections. Several
commenters supported Sec. 106.6(d)(3), asserting that
constitutionally-guaranteed due process rights trump any guidance or
requirements established under Title IX. Other commenters argued that
the Department should add additional specific constitutional saving
clauses, similar to Sec. 106.6(d)(1)-(3), to protect individual
liberty from government overreach, such as Sixth Amendment and Seventh
Amendment protections.
Several commenters opposed Sec. 106.6(d)(3). Commenters opposed
Sec. 106.6(d)(3) because they believed the provision is unnecessary.
Some commenters opposed Sec. 106.6(d)(3) asserting it was inapplicable
to private institutions. Commenters opposed this provision asserting it
would be burdensome for recipients. Commenters opposed this provision
arguing that the provision implies that there has been past fault by
institutions depriving constitutional rights. Commenters opposed this
provision arguing that it could be seen by courts as calling for the
courts to give greater weight to constitutional protections than a
court may otherwise give.
Discussion: The purpose of Sec. 106.6(d)(3) is to ensure that
regulations implementing Title IX promote the non-discrimination
mandate of Title IX consistent with all constitutional rights and
protections. To avoid confusion regarding the intersection of
individuals' rights under the U.S. Constitution, and a recipient's
obligations under Title IX, Sec. 106.6(d)(3) clarifies that nothing in
regulations implementing Title IX requires a recipient to infringe upon
any rights guaranteed by the U.S. Constitution. This provision also
makes it clear that, under Title IX regulations, recipients--including
private recipients--are not obligated by Title IX to restrict rights
that the Federal government could not restrict directly. Consistent
with Supreme Court case law, the government may not compel private
actors to restrict conduct that the government itself could not
constitutionally restrict.\1559\
---------------------------------------------------------------------------
\1559\ Peterson v. City of Greenville, 373 U.S. 244 (1963);
Truax v. Raich, 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------
The Department agrees that constitutionally-guaranteed due process
rights trump any guidance or requirements established by Title IX, and
disagrees that Sec. 106.6(d)(3) may be interpreted by courts to give
greater weight to constitutional protections than a court may otherwise
give. Congress authorized and directed the Department to promulgate
regulations to effectuate Title IX.\1560\ The Department, thus, has the
authority to promulgate regulations that further Title IX's non-
discrimination mandate, though such regulations must not require
restriction of constitutional rights. Section 106.6(d)(3) states that
position. Nothing in the final regulations alters the meaning or scope
of constitutional rights or protections. Section 106.6(d)(3) is in the
nature of a saving clause, and such clauses are routinely included in
regulations to note similar issues; we have no reason to believe
including one here would encourage courts to apply the Constitution
differently or more broadly than courts otherwise would.
---------------------------------------------------------------------------
\1560\ 20 U.S.C. 1682.
---------------------------------------------------------------------------
With respect to the suggestion to list additional constitutional
rights specifically in Sec. 106.6(d), the Department believes the
concerns raised by the commenters are already sufficiently addressed by
this provision, which covers ``any other rights guaranteed against
government action by the U.S. Constitution'' and by Sec. 106.6(d)(1)-
(2) which specifically refer to constitutional rights that most often
intersect with Title IX enforcement--First Amendment rights, and the
right to due process of law.
The Department disagrees that this provision is unnecessary or
burdensome. The Department's goal is to ensure that non-discrimination
provisions are enforced in a manner that is consistent with the entire
U.S. Constitution. Although the First Amendment and Due Process Clauses
tend to be the most directly relevant provisions to these final
regulations concerning responses to sexual harassment, the Department
believes a
[[Page 30421]]
catch-all saving clause regarding constitutional rights is necessary
and appropriate. In addition, emphasizing and clarifying that these
final regulations do not require a recipient to restrict rights, should
not pose a burden.
We do not believe that inclusion of Sec. 106.6(d)(3) in these
final regulations implies ``fault'' on the part of particular
recipients or indicates a belief regarding the extent to which
recipients may, or may not, have regarded Title IX obligations as
necessitating restriction of constitutional rights, but we believe that
including this provision will help ensure that constitutional rights
are properly respected in all efforts to enforce Title IX.
Changes: None.
Section 106.6(e) FERPA
Background
These final regulations, including Sec. 106.45(b)(5)(vi) (giving
the parties access to all evidence directly related to the allegations
in the formal complaint) and Sec. 106.45(b)(5)(iv) (allowing the
parties to bring an advisor of choice to all meetings in the Title IX
proceeding), 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. Procedural due process
requires notice and a meaningful opportunity to respond.\1561\ 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, including employee-respondents, their
constitutional right to due process because the Department, as an
agency of the Federal government, is subject to the U.S. Constitution.
The Department's position is consistent with the principle articulated
in the Department's 2001 Guidance that the ``rights established under
Title IX must be interpreted consistent with any federally guaranteed
due process rights involved in a complaint proceeding.'' \1562\
---------------------------------------------------------------------------
\1561\ Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (stating
that the ``essence of due process is the requirement that `a person
in jeopardy of serious loss (be given) notice of the case against
him and opportunity to meet it''') (internal citations omitted).
\1562\ 2001 Guidance at 22.
---------------------------------------------------------------------------
The Department expressly stated in the 2001 Guidance that ``[FERPA]
does not override federally protected due process rights of persons
accused of sexual harassment'' in the context of public school
employees or other recipients that are public entities, and the 2001
Guidance will continue to constitute the Department's interpretation of
the intersection of Title IX and FERPA even after these final
regulations become effective.\1563\ The Department's NPRM addresses
private schools and expressly states:
---------------------------------------------------------------------------
\1563\ Id.
We are proposing to add paragraph (d) to clarify that nothing in
these regulations requires a recipient to infringe upon any
individual's rights protected under the First Amendment or the Due
Process Clauses, or [ ] any other rights guaranteed by the U.S.
Constitution. The language also makes it clear that, under the Title
IX regulations, recipients--including private recipients--are not
obligated by Title IX to restrict speech or other behavior that the
Federal government could not restrict directly. Consistent with
Supreme Court case law, the government may not compel private actors
to restrict conduct that the government itself could not
constitutionally restrict. See e.g., Peterson v. City of Greenville,
373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). Thus,
recipients that are private entities are not required by Title IX or
its regulations to restrict speech or other behavior that would be
protected against restriction by governmental entities.\1564\
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\1564\ 83 FR 61480-81 (emphasis added).
The Department acknowledged in the NPRM that it cannot interpret
Title IX to compel a private school to deprive employee-respondents of
their due process rights, specifically the opportunity to review the
evidence that directly relates to the allegations against that employee
and to bring an advisor to help defend against the allegations.
Similarly, the Department cannot interpret FERPA to compel a private
school to apply the Department's Title IX regulations in a manner that
deprives parties, including any respondent-employees, of due process.
In Peterson v. City of Greenville, the U.S. Supreme Court held that the
City of Greenville through an ordinance could not compel a private
restaurant to operate in a manner that treated patrons differently on
the basis of race in violation of the Equal Protection Clause of the
Fourteenth Amendment.\1565\ Similarly, in Truax v. Raich, the Supreme
Court held that Arizona cannot use a State statute to compel private
entities to employ a specific percentage of native-born Americans as
employees in violation of the Equal Protection Clause of the Fourteenth
Amendment.\1566\ Like the City of Greenville and the State of Arizona,
the Department cannot compel private schools that apply FERPA and Title
IX, as interpreted by the Department, to violate a party's due process
rights, including an employee's due process rights.
---------------------------------------------------------------------------
\1565\ 373 U.S. 244, 247-48 (1963).
\1566\ 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------
(The Department sometimes uses the terms ``alleged victim'' and
``alleged perpetrator'' in responding to comments about the
intersection between Title IX and FERPA because FERPA, e.g., 20 U.S.C.
1232g(b)(6), and its implementing regulations, e.g., 34 CFR
99.31(a)(13)-(a)(14) and 34 CFR 99.39, use these specific terms.)
Comments, Discussion, and Changes
Comments: Some commenters commended the proposed rules for
appropriately balancing Title IX protections with FERPA, suggesting
that both are important laws but that in most cases, the proposed rules
and FERPA can co-exist without conflict.
Some commenters argued that nothing in FERPA prevents parties from
accessing information or evidence that directly relates to their case,
particularly if the evidence could potentially be used against them to
establish responsibility for sexual harassment. Commenters suggested
that one way to protect privacy might be to provide only a hard copy of
relevant documents, or a hard copy and ongoing electronic access that
was limited. Some commenters also stated that all parties should have a
hard copy of the evidence and ongoing electronic access. Commenters
asserted that the proposed rules protect the rights of students who
attend school and will calm the fears of parents who are concerned
about their children being falsely accused of sexual harassment. One
commenter, anticipating criticism, argued that ``victim-centered''
approaches do not work in a context where both parties have a right to
present their case, and where schools have a duty to fairly determine
whether a party is responsible. Another commenter suggested that
FERPA's provision allowing the production of student records in
connection with a law enforcement action might also reduce tension
between the proposed rules and FERPA.
Commenters also noted that the proposed rules are good for
providing predictability and certainty when a conflict between Title IX
and FERPA does arise, which is what recipients need in order to comply
with both. One student expressed appreciation that the proposed rules
expressly recognized and considered FERPA in its provisions. Some
commenters noted that it was appropriate to favor due process in cases
where that principle conflicts with FERPA, since due process is a
constitutional right, while FERPA is a Federal statute. Several
commenters
[[Page 30422]]
suggested that the proposed rules would ensure justice for victims and
protections for those falsely accused.
Discussion: The Department appreciates the comments in support of
its proposed regulations and agrees that a recipient may comply with
both these final regulations and FERPA. The Department does not believe
that the proposed or final regulations offer a ``complainant-centered''
(or ``victim-centered'') or ``respondent-centered'' approach. The
Department's final regulations provide a fair, impartial process for
both complainants and respondents.
The Department acknowledges that a recipient may use, but is not
required to use, a file sharing platform that restricts the parties and
advisors from downloading or copying evidence. In the final
regulations, the Department has removed the specific reference to such
a file sharing platform to emphasize that using such a platform is
discretionary and not mandatory.
A recipient must provide both parties an equal opportunity to
inspect and review any evidence obtained as part of the investigation
that is directly related to the allegations raised in a formal
complaint, as described in Sec. 106.45(b)(5)(vi). The Department also
specifies in Sec. 106.45(b)(5)(vi) that the recipient must send to
each party and the party's advisor, if any, the evidence subject to
inspection and review in an electronic format. The Department neither
requires nor prohibits a recipient from providing parties with a hard
copy of the investigative report in Sec. 106.45(b)(5)(vii) or any
evidence obtained as part of an investigation that is directly related
to the allegations raised in a formal complaint as described in Sec.
106.45(b)(5)(vi). To clarify the Department's position in this regard,
the Department revised Sec. 106.45(b)(5)(vi)-(vii) to allow a
recipient to provide a hard copy of the evidence and investigative
report to the party and the party's advisor of choice, or to provide
the evidence and investigative report in an electronic format. The
Department discusses this revision in the ``Section 106.45(b)(5)(vi)
Inspection and Review of Evidence Directly Related to the Allegations,
and Directed Question 7'' subsection and the ``Section
106.45(b)(5)(vii) An Investigative Report that Fairly Summarizes
Relevant Evidence'' subsection of the ``Investigation'' subsection of
the ``Section 106.45 Recipient's Response to Formal Complaints''
section of this preamble.
The Department does not fully understand how the provision in FERPA
allowing the production of student records in connection with a law
enforcement action might also reduce tension between the proposed rules
and FERPA. These final regulations do not directly implicate law
enforcement, and it is not clear how these final regulations directly
implicate or address any exemptions under FERPA that allow for the
disclosure of personally identifiable information from an education
record without consent in relation to a law enforcement action.
The Department is not ``favoring'' due process over FERPA. As
explained earlier in this section, the Department is bound by the U.S.
Constitution, including the Due Process Clause in the Fifth and
Fourteenth Amendment. The Department, thus, cannot administer Title IX
or FERPA in a manner that deprives persons of due process of law.
Changes: The Department revised Sec. 106.45(b)(5)(vi)-(vii) to
allow a recipient to provide a hard copy of the evidence and
investigative report to the party and the party's advisor of choice or
to provide the evidence and investigative report in an electronic
format.
Comments: Many commenters thought that the proposed rules
appropriately balanced student privacy with the need for students to
obtain evidence during the Title IX grievance process. One commenter
stated that the provisions of the proposed rules are necessary to
ensure that respondents have the evidence that they need to defend
themselves from false accusations, and that schools occasionally
deprive respondents of relevant evidence under the guise of student
privacy. Some commenters argued that because schools have had a
negative track record in providing relevant evidence to respondents, it
was important for the proposed rules to avoid giving schools too much
flexibility in applying Title IX, which ensures that schools cannot
abuse the process in order to disadvantage respondents. One commenter
asserted that without the proposed rules, most parents could not in
good conscience send their sons to college, given the possibility of
being denied due process when defending against an accusation of sexual
harassment.
Discussion: The Department appreciates the commenters' support of
its proposed regulations and agrees that the grievance process in Sec.
106.45 for formal complaints of sexual harassment provides sufficient
due process protections for both complainants and respondents.
Changes: None.
Comments: Many commenters suggested that there was no true conflict
between FERPA and Title IX in terms of the requirements surrounding
evidence production. According to the commenters, this is because there
is nothing in FERPA that prevents the parties from gaining access to
the evidence that directly relates to their case, and which may be used
against them in the Title IX process. One commenter stated that FERPA
includes provisions that relate to the disclosure of information
related to a sexual assault allegation, and the commenter cited a
provision that specifically allows schools to disclose to the alleged
victim of any crime of violence or rape and other sexual assaults, the
final results of any disciplinary proceedings conducted by the
institution against the alleged perpetrator of the offense.\1567\ This
commenter stated that FERPA's limits on redisclosure of information do
not apply to information that institutions are required to disclose
under the Clery Act.\1568\ The commenter also stated that institutions
may not require a complainant to abide by a nondisclosure agreement in
writing or otherwise in a way that would prevent the re-disclosure of
this information.
---------------------------------------------------------------------------
\1567\ 20 U.S.C. 1232g(b)(6).
\1568\ 34 CFR 99.33(c).
---------------------------------------------------------------------------
Discussion: The Department agrees that there is no inherent
conflict between these final regulations implementing Title IX, and
FERPA and its implementing regulations with respect to the Title IX
requirements concerning evidence production. The Department
acknowledges that provisions in FERPA, e.g. 20 U.S.C. 1232g(b)(6),
address the conditions permitting the disclosure, without prior written
consent, to an alleged victim of a crime of violence or a nonforcible
sex offense, among others, of the final results of any disciplinary
proceeding conducted by an institution against the alleged perpetrator
of such crime or offense with respect to such crime or offense.\1569\
The Department also acknowledges Sec. 99.33(c), concerning the
inapplicability of the general limitations in FERPA on the redisclosure
of personally identifiable information contained in education records
that the Clery Act and its implementing regulations require to be
disclosed.
---------------------------------------------------------------------------
\1569\ The Department uses the terms ``alleged victim'' and
``alleged perpetrator'' in this section because these terms are in
FERPA, 20 U.S.C. 1232g(b)(6).
---------------------------------------------------------------------------
The Department does not interpret Title IX as either requiring
recipients to, or prohibiting recipients from, using a non-disclosure
agreement, as long as such non-disclosure agreement does not restrict
the ability of either party to discuss the allegations under
[[Page 30423]]
investigation or to gather and present relevant evidence under Sec.
106.45(b)(5)(iii). Any non-disclosure agreement, however, must comply
with all applicable laws.
Changes: None.
Comments: Some commenters suggested that concerns regarding the
private information of complainants were either overstated or
outweighed by the need to reach a fair conclusion in the Title IX
process. One commenter stated that there is no way to provide adequate
due process while still avoiding the discomfort complainants may feel
having to review the investigative report that contains summaries of
traumatic incidents which include private details about the
complainant. This commenter suggested that while recipients may be
allowed to redact highly sensitive information, or threaten parties
with punitive action for publicly disclosing private information in the
investigative report or evidence collected by the investigator, both
parties need to be able to review the evidence and the investigative
report. The commenter believed that exchange of evidence, and reviewing
the investigative report, is necessary to provide due process for both
parties.
Discussion: The Department appreciates the comments in support of
its proposed regulations. The Department acknowledges that sharing
information may be uncomfortable and that sharing such information in a
grievance process under Sec. 106.45 is necessary to provide adequate
due process to both parties. Each party should be able inspect and
review any evidence obtained as part of the investigation that is
directly related to the allegations raised in a formal complaint, as
this evidence may be used to support or challenge the allegations in a
formal complaint.
Changes: None.
Comments: Some commenters opposed most of the proposed rules but
stated their appreciation that the proposed rules acknowledged FERPA
and that schools had a duty to comply with FERPA to the extent
compliance was consistent with Title IX. One commenter stated the
proposed rules were workable so long as a recipient itself has sole
discretion to determine what evidence is directly related to sexual
harassment allegations. The commenter suggested that any process where
OCR second guesses a recipient's determination as to whether documents
are directly related to the allegations raised in a formal complaint
will significantly impair a recipient's ability to provide a prompt and
equitable resolution and will effectively turn disputes among the
recipient and the parties about evidence into Federal matters. Other
commenters supported the proposed rule, noting that even in cases of
private medical or behavioral information, if that information is
relevant to an allegation of sexual harassment, then the party needing
access to the records should have it.
Discussion: The Department appreciates the comments in support of
these final regulations. A recipient has some discretion to determine
whether evidence obtained as part of an investigation is directly
related to allegations raised in a formal complaint as described in
Sec. 106.45(b)(5)(vi), and the Department is required to enforce both
FERPA and Title IX. The Department previously noted that the ``directly
related to'' requirement in Sec. 106.45(b)(vi) aligns with FERPA. For
example, the regulations implementing FERPA define education records as
records that are ``directly related to a student'' pursuant to Sec.
99.3. Accordingly, the Department in enforcing both FERPA and Title IX
is well positioned to determine whether records constitute education
records and also whether records are directly related to the
allegations in a formal complaint. The Department has a responsibility
to administer both FERPA and Title IX and cannot shirk its
responsibility. If a party files a complaint that the recipient did not
provide the party with an equal opportunity to inspect and review any
evidence obtained as part of the investigation that is directly related
to the allegations raised in a formal complaint, then the Department
will investigate and must determine whether the recipient complied with
Sec. 106.45(b)(5)(vi).
In the final regulations, the Department has clarified in Sec.
106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or
otherwise use a party's records that are made or maintained by a
physician, psychiatrist, psychologist, or other recognized professional
or paraprofessional acting in the professional's or paraprofessional's
capacity, or assisting in that capacity, and which are made and
maintained, in connection with provision of treatment to the party,
unless the recipient obtains that party's voluntary, written consent to
do so for the grievance process under Sec. 106.45(b).\1570\ This
provision prevents the recipient from accessing, considering,
disclosing, or otherwise using such records without the party's
knowledge for a grievance process under Sec. 106.45(b). If the party
would like the recipient to access, consider, disclose, or otherwise
use such records in a grievance process under Sec. 106.45(b), then the
party must give the recipient voluntary, written consent to do so. If
the party is not an ``eligible student,'' as defined in 34 CFR 99.3,
then the recipient must obtain the voluntary, written consent of a
``parent,'' as defined in 34 CFR 99.3. Absent such voluntary, written
consent, a recipient may not access, consider, disclose, or otherwise
use such records in a grievance process under Sec. 106.45(b). If a
party provides such voluntary, written consent and if such records are
directly related to the allegations raised in a formal complaint, then
the recipient must provide both parties an equal opportunity to inspect
and review the records pursuant to Sec. 106.45(b)(5)(vi).
---------------------------------------------------------------------------
\1570\ While the Department based this regulatory provision on
the exemption for treatment records in the definition of the term
``education records,'' as set forth in FERPA at 20 U.S.C.
1232g(a)(4)(B)(iv), we made two minor modifications to the FERPA
exemption to better align the provision in these final regulations
with the purpose of protecting the privacy of such treatment records
in a grievance process under Sec. 106.45, rather than the purpose
of the exemption for treatment records in FERPA, which is to
disallow college students from being able ``directly to inspect''
such treatment records, although allowing college students to have
``a doctor or other professional of their choice inspect their
records.'' ``Joint Statement in Explanation of the Buckley/Pell
Amendment [to FERPA],'' 120 Cong. Rec. 39858, 39862 (Dec. 13, 1974).
For this reason, we removed the limitation in the FERPA definition
of treatment records narrowing the applicability of the exemption to
students who are 18 years of age or older or in attendance at an
institution of postsecondary education because this provision should
apply to any party in a grievance process under Sec. 106.45,
regardless of that party's age. We also revised the phrase used in
the FERPA exemption, ``made, maintained, or used only in connection
with the provision of treatment to the student,'' to ``made and
maintained in connection with the provision of treatment to the
party'' so that this provision will apply where a recipient has the
discretion under FERPA to use treatment records for other than
treatment purposes, such as billing or litigation purposes. Thus,
under these final regulations a recipient cannot access, consider,
disclose, or otherwise use a party's records that are made or
maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in the
professional's or paraprofessional's capacity, or assisting in that
capacity, and which are made and maintained in connection with the
provision of treatment to the party, unless the recipient obtains
that party's voluntary, written consent to do so for a grievance
process under Sec. 106.45. Also, if the party is not an ``eligible
student,'' as defined in 34 CFR 99.3 (FERPA regulations), then the
recipient must obtain the voluntary, written consent of a
``parent,'' as defined in 34 CFR 99.3.
---------------------------------------------------------------------------
Changes: The Department clarified in Sec. 106.45(b)(5)(i) that a
recipient cannot access, consider, disclose, or otherwise use a party's
records that are made or maintained by a physician, psychiatrist,
psychologist, or other recognized professional or paraprofessional
acting in the professional's or
[[Page 30424]]
paraprofessional's capacity, or assisting in that capacity, and which
are made and maintained in connection with the provision of treatment
to the party, unless the recipient obtains that party's voluntary,
written consent. If the party is not an ``eligible student,'' as
defined in 34 CFR 99.3, then the recipient must obtain the voluntary,
written consent of a ``parent,'' as defined in 34 CFR 99.3.
Comments: One commenter cautioned the Department that the proposed
rules would not garner as many supportive comments as critical
comments, but that the Department should pay more attention to reason
and logic, as opposed to sheer numbers. The commenter argued that
opponents of the proposed rules are better funded, and that there is
less of a stigma to openly criticizing the Department than there is in
saying that one was accused of sexual harassment, even if wrongly
accused, and openly supporting the Department's proposed rules. Another
commenter argued that depriving respondents of relevant evidence only
created more victims, not fewer.
Discussion: The Department appreciates the commenters'
perspectives.
Changes: None.
Comments: Several commenters opposed the requirement in Sec.
106.45(b)(5)(v) (written notice of investigative interviews, meetings,
and hearings) because they stated it generally conflicts with FERPA.
One commenter suggested adding a FERPA compliance clause to Sec.
106.45(b)(5)(v) due to concerns about student privacy.
One commenter argued specifically that the requirement in Sec.
106.45(b)(5)(v) that recipients disclose the identities of all the
parties' conflicts with FERPA. One commenter specifically argued that
requiring a recipient to disclose all sanctions imposed on the
respondent conflicts with the school's responsibilities under FERPA.
Several commenters specifically suggested that the Department remove
from the documentation of the recipient's response to a Title IX
complaint any requirement to include information regarding remedies and
supportive measures accessed by a complainant who is a student.
Several commenters stated that the parties should not be informed
of the remedies given to the complainant, or to the disciplinary
sanctions imposed on the respondent, in cases where the allegation
involves assault, stalking, dating violence, or other violent crimes.
Not only does disclosure of these items violate FERPA, but it would be
troubling, for instance, to inform a respondent that after they were
found responsible, the complainant was given remedies like moving to
other classes, counseling, and so on. Commenters also asserted that the
respondent who is found responsible should not have any knowledge about
what safety measures the school is taking to protect the complainant,
since those very measures will be undermined if the respondent learns
of them. In support of these arguments, some commenters cited the Clery
Act, arguing that it requires less than the proposed rule, and that the
final regulations should map Clery specifically. These commenters
asserted that when such results become final, Sec. 668.46(k)(2)(v) of
the Clery Act regulations further clarify that the ``result'' must
include any sanctions and rationale for results and sanction,
notwithstanding FERPA.
Discussion: The Department disagrees that Sec. 106.45(b)(5)(v)
inherently or directly conflicts with FERPA. A recipient should
interpret Title IX and FERPA in a manner to avoid any conflicts. To the
extent that there may be rare and unusual circumstances, where a true
conflict between Title IX and FERPA exists, the Department includes a
provision in Sec. 106.6(e) to expressly state that the obligation to
comply with these final regulations under Title IX is not obviated or
alleviated by the FERPA statute or regulations. Section 106.45(b)(5)(v)
requires recipients to provide to the party whose participation is
invited or expected written notice of all hearings, investigative
interviews, or other meetings with a party, with sufficient time for
the party to prepare to participate in the proceeding. The Department
notes that this provision is similar to the provision in the
Department's regulations, implementing the Clery Act, which requires
timely notice of meetings at which the accuser or accused, or both, may
be present and provides 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 under
Sec. 668.46(k)(3)(1)(B). The Department has not interpreted its
regulations, implementing the Clery Act, to violate FERPA and will not
interpret similar regulations in these final regulations to violate
FERPA.
There is no need to add a FERPA compliance clause in this
particular section, as a recipient is always required to comply with
all applicable laws. Adding a FERPA compliance clause would contradict
the General Education Provisions Act (GEPA), 20 U.S.C. 1221(d), which
is reflected in Sec. 106.6(e). GEPA provides in relevant part:
``Nothing in this chapter shall be construed to affect the
applicability of title VI of the Civil Rights Act of 1964, title IX of
the Education Amendments of 1972, title V of the Rehabilitation Act of
1973, the Age Discrimination Act, or other statutes prohibiting
discrimination, to any applicable program.'' \1571\ Since at least
2001, the Department has interpreted ``this provision to mean that
FERPA continues to apply in the context of Title IX enforcement, but if
there is a direct conflict between the requirements of FERPA and the
requirements of Title IX, such that enforcement of FERPA would
interfere with the primary purpose of Title IX to eliminate sex-based
discrimination in schools, the requirements of Title IX override any
conflicting FERPA provisions.'' \1572\ Section 106.6(e) reflects the
Department's longstanding interpretation of GEPA and provides that the
``obligation to comply with this part is not obviated or alleviated by
the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part
99.''
---------------------------------------------------------------------------
\1571\ 20 U.S.C. 1221(d).
\1572\ 2001 Guidance at vii.
---------------------------------------------------------------------------
A party such as a complainant or respondent must know who the other
parties in a formal complaint are in order to support or challenge the
allegations in the formal complaint. With respect to recipients that
are State actors, constitutional due process would require as much. As
previously stated, the Department interprets these final regulations in
a manner that will not require a recipient to violate a person's
constitutional due process rights, whether the recipient is private or
public.
Additionally, FERPA and its implementing regulations define the
term ``education records'' as meaning, 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.\1573\ The Department previously stated: ``Under this
definition, 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.'' \1574\ The Department made
this statement in response to comments regarding
[[Page 30425]]
impairing due process in student discipline cases in its notice-and-
comment rulemaking to promulgate regulations to implement FERPA.\1575\
Written notices under Sec. 106.45(b)(5)(v) may pertain to students who
are complainants or respondents, in which case they would need to know
who is being interviewed as a witness in an investigation of the formal
complaint of harassment.
---------------------------------------------------------------------------
\1573\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
\1574\ U.S. Dep't. of Education, Office of Planning, Evaluation,
and Policy Development, Final Regulations, Family Educational Rights
and Privacy, 73 FR 74806, 74832-33 (Dec. 9, 2008).
\1575\ Id.
---------------------------------------------------------------------------
FERPA, 20 U.S.C. 1232g(b)(6), and its implementing regulations, 34
CFR 99.31(a)(13)-(a)(14) and 34 CFR 99.39, address the conditions
permitting the disclosure, without prior written consent, to an alleged
victim of a crime of violence or a nonforcible sex offense, among
others, of the final results of any disciplinary proceeding conducted
by an institution against the alleged perpetrator of such crime or
offense with respect to such crime or offense. Similarly, the Clery
Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34
CFR 668.46(k)(3)(iv), require an institution to provide the result of a
proceeding, including any sanctions imposed by the institution, to both
parties. The Department believes that both parties should receive the
same information about the result as to each allegation, including a
determination regarding responsibility, the reasons for the
determination, any sanctions the recipient imposes on the respondent,
and whether remedies will be provided by the recipient to the
complainant, under Sec. 106.45(b)(7)(ii)(E) as revised in the final
regulations.\1576\ The Department believes that the result as to each
allegation in a formal complaint of sexual harassment concerns both
parties and clarifies in the final regulations that the result includes
both sanctions and whether remedies will be provided. The result of
each determination, including listing any sanctions and stating whether
remedies will be provided, should help ensure that no person is
excluded from participation in, denied the benefits of, or subjected to
discrimination under any education program or activity receiving
Federal financial assistance without unnecessarily disclosing to the
respondent the details of remedies provided to the complainant. The
details of remedies provided to the complainant remain part of the
complainant's education record and not the respondent's education
record, unless the remedy also imposes requirements on the respondent.
We acknowledge that sanctions may at times overlap with remedies. For
example, the recipient may impose a unilateral no-contact order on the
respondent as part of a sanction that also may constitute a remedy.
Under the final regulations, the written determination should list the
one-way no-contact order as a sanction against the respondent and state
that the recipient will provide remedies to the complainant. Thus, even
where the no-contact order constitutes both a sanction and a remedy,
the written determination would only list the measure insofar as it
constitutes a sanction, preserving as much confidentiality as possible
around the particular nature of a complainant's remedies. By way of
further example, if a recipient wishes to change the housing
arrangement of the complainant as part of a remedy, the written
determination should simply state that remedies will be provided to the
complainant; the complainant would then communicate separately with the
Title IX Coordinator to discuss remedies,\1577\ and the decision to
change the complainant's housing arrangement as part of a remedy would
not have been disclosed to the respondent in the written determination.
That remedy (which does not directly affect the respondent) must not be
disclosed to the respondent.
---------------------------------------------------------------------------
\1576\ The Department's position is consistent with the 2001
Guidance, that FERPA does not conflict with the Title IX requirement
``that the school notify the harassed student of the outcome of its
investigation, i.e., whether or not harassment was found to have
occurred, because this information directly relates to the victim.''
2001 Guidance at vii. The Department, however, departs from the 2001
Guidance inasmuch as that guidance document stated, ``FERPA
generally prevents a school from disclosing to a student who
complained of harassment information about the sanction, or
discipline imposed upon a student who was found to have engaged in
that harassment.'' Id. The Department acknowledged in the 2001
Guidance that exceptions ``include the case of a sanction that
directly relates to the person who was harassed (e.g., an order that
the harasser stay away from the harassed student), or sanctions
related to offenses for which there is a statutory exception, such
as crimes of violence or certain sex offenses in postsecondary
institutions.'' Id. at fn. 3. Through these final regulations, the
Department takes the position that sanctions always directly impact
the victim, as to sanctions imposed for any conduct described in
Sec. 106.30 as ``sexual harassment,'' irrespective of whether the
sanction is for a crime of violence or certain sex offenses, for
quid pro quo sexual harassment, or for the Davis definition of
sexual harassment in Sec. 106.30. Irrespective of whether the
sexual harassment rises to the level of a crime of violence, the
sanction directly relates to the victim who should know what to
expect after the conclusion of the grievance process. For example,
the victim should know whether the perpetrator was expelled, or
whether the perpetrator was suspended for a period of time, as such
information will inevitably impact the victim. The sanction
represents part of the recipient's response to addressing sexual
harassment, and the victim should know how the sexual harassment
which the victim suffered, was addressed.
\1577\ To clarify this, the final regulations additionally
revise Sec. 106.45(b)(7)(iv) to state that the Title IX Coordinator
is responsible for the effective implementation of remedies. Thus,
where a written determination states that remedies will be provided,
the complainant may contact the Title IX Coordinator to discuss the
nature and implementation of such remedies.
---------------------------------------------------------------------------
Changes: The Department revised Sec. 106.45(b)(7)(ii)(E) to state
that the written determination must include any sanctions the recipient
imposes on the respondent, and whether remedies designed to restore or
preserve equal access to the recipient's education program or activity
will be provided by the recipient to the complainant.
Comments: Commenters objected to the proposed rule, stating that
Title IX should not control over FERPA, but vice versa--FERPA should
take precedence over Title IX in cases of a conflict. Some commenters
suggested that the 2001 Guidance more effectively handled these types
of FERPA issues, and better avoided blanket statements about whether
FERPA ought to be superseded by Title IX. One suggested an express
statement that Title IX overrides FERPA, arguing that the 2001 Guidance
states as much unambiguously. Commenters stated that the proposed rules
exacerbate the conflict between FERPA and Title IX. Several commenters
stated that the final regulations ought to specify that complainants
have the right to keep their education records private. Some commenters
even stated that the Department lacked the authority to tell schools
that Title IX controls over FEPRA, and that schools have an independent
duty to comply with FERPA. Some commenters suggested removing any
mention of FERPA, since it might confuse recipients to mention it, but
say that Title IX supersedes FERPA in the case of a conflict. Other
commenters asserted it might be confusing because FERPA does not apply
to the types of information likely to be shared under the grievance
procedures. These commenters contended that the proposed rules were not
``trauma-informed,'' inasmuch as they are overly focused on addressing
the minor problem of false accusations, as opposed to remedying sexual
harassment.
Many commenters argued that FERPA does not authorize one student--
or an employee, for that matter--to review the education records of a
student merely because the student complains of sexual harassment. One
commenter expressed concern that the proposed rules would require the
sharing of student records with employees who would otherwise not be
authorized to view records without the student's consent.
Some commenters suggested that the preamble's justification for
records that relate to a student being construed as an exception to
FERPA is wrong.
[[Page 30426]]
Commenters contended that not every document that relates to a
complainant or to an incident relates to the respondent. Schools, if
they comply with the rule, asserted commenters, will be held
accountable for their FERPA violations. Commenters stated the
Department should reconsider whether the parties ought to be entitled
to physical, mental, and academic performance records of other
students.
Other commenters argued that the proposed rules would force schools
to violate State law, for which they also have an independent legal
duty to comply. For instance, commenters asserted that the Department
cannot require schools to provide recordings that were obtained in
violation of a State's two-party consent law for recordings. Commenters
cited Florida and Washington law for these arguments. They argued that
Washington State protects IEPs (individualized education plans) and
Section 504 plans from production, but the proposed regulations would
likely allow the production of these records in some cases. One
commenter asserted that Florida law protects records related to sexual
harassment until a finding is made, so the proposed rules will force
schools to violate Florida law. A few commenters proposed that the
Department should indicate whether it thinks that Title IX reports and
files should be subject to a public records request, and if so, the
scope and extent of such requests.
Discussion: The Department disagrees that Sec. 106.45(b)(5)(v)
inherently or directly conflicts with FERPA. A recipient should
interpret Title IX and FERPA in a manner to avoid any conflicts. To the
extent that there may be unusual circumstances, where a true conflict
between Title IX and FERPA may exist (such as a student's formal
complaint against an employee), the Department includes a provision in
Sec. 106.6(e) to expressly state that the obligation to comply with
these final regulations under Title IX is not obviated or alleviated by
the FERPA statute or regulations. In addressing conflicts between FERPA
and Title IX, the Department in the Preamble of the 2001 Guidance
states:
In 1994, as part of the Improving America's Schools Act,
Congress amended the General Education Provisions Act (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 . . . .'' The Department interprets
this provision to mean that FERPA continues to apply in the context
of Title IX enforcement, but if there is a direct conflict between
requirements of FERPA and requirements of Title IX, such that
enforcement of FERPA would interfere with the primary purpose of
Title IX to eliminate sex-based discrimination in schools, the
requirements of Title IX override any conflicting FERPA
provisions.\1578\
---------------------------------------------------------------------------
\1578\ 2001 Guidance at vii.
The General Education Provisions Act (GEPA), of which FERPA is a
part, states: ``Nothing in this chapter shall be construed to affect
the applicability of title VI of the Civil Rights Act of 1964, Title IX
of the Education Amendments of 1972, title V of the Rehabilitation Act
of 1973, the Age Discrimination Act, or other statutes prohibiting
discrimination, to any applicable program.'' \1579\ The legislative
history underlying this provision in GEPA demonstrates that Congress
did not intend for GEPA to limit the implementation or enforcement of
the Civil Rights Act of 1964. There is not much legislative history
with respect to the 1994 amendment to GEPA,\1580\ adding Title IX, but
the legislative history with respect to the 1974 amendment to
GEPA,\1581\ concerning Title VI of the Civil Rights Act, is
instructive. The legislative history reveals the Senate was concerned
that certain provisions in GEPA may limit the Civil Rights Act of
1964.\1582\ Consequently, the Senate specifically stated that ``in
order to make clear that the provisions in the [GEPA] do not conflict
with the Civil Rights Act of 1964, subparagraph (B) expressly states
that such Civil Rights Act is not an applicable statute and therefore
subject to limitations on interpretations of such a statute which may
occur in [GEPA].'' \1583\ The Senate's proposed amendment was slightly
revised in the conference committee, but there was no mention of any
change in purpose or scope. Specifically, the Conference Report from
the House notes that the final amendments to GEPA include language that
expressly addresses the conflict between GEPA and Title VI.\1584\ This
Conference Report provides in relevant part:
---------------------------------------------------------------------------
\1579\ 20 U.S.C. 1221(d).
\1580\ The 1994 amendment to GEPA was part of Sec. 211, title
II of Improving America's Schools Act, Public Law 103-382, 108 Stat
3518.
\1581\ The 1974 amendment to GEPA was part of Sec. 505(a)(1),
title V of the Education Amendments of 1974, Public Law 93-380, 88
Stat 484.
\1582\ S. Rep. No. 93-763, at 233 (1974).
\1583\ Id.
\1584\ H.R. Rep. No. 93-1211, at 177 (1974).
The Senate amendment, but not the House bill, clarifies that for
the purposes of the General Education Provisions Act, the Civil
Rights Act shall not be considered an applicable statute, but shall
continue to have full force and effect over education programs. . .
. The conference substitute contains these provisions of the Senate
amendment, except that the provision relating to the Civil Rights
Act of 1964 states that nothing in the General Education Provisions
Act shall be construed to affect the applicability of such [Civil
Rights Act of 1964] to any program subject to the provisions of the
General Education Provisions Act.\1585\
---------------------------------------------------------------------------
\1585\ Id.
The legislative history thus supports the Department's 2001
interpretation that Congress intended the Civil Rights Act of 1964 to
override GEPA, which includes FERPA, if there was a direct conflict
between the two statutes. When Congress amended GEPA to also include
Title IX in the same section and context as Title VI, Congress
presumably intended that Title IX, like Title VI, override GEPA,
including FERPA, if there was a direct conflict. The Department's
position is consistent with its 2001 Guidance, and the Department is
not departing from this position.
The Department has the authority to enforce both Title IX under 20
U.S.C. 1681 and 34 CFR part 106 and FERPA under 20 U.S.C. 1232g and 34
CFR part 99. Whether FERPA applies to a particular record is a fact-
specific determination that FERPA and its implementing regulations
address, not these final regulations.
The Department disagrees that the proposed regulations are not
``trauma-informed'' insofar as the Department recognizes and
acknowledges the traumatic impact of sexual harassment and aims to hold
recipients accountable for legally binding obligations throughout these
final regulations in part because the experience of sexual harassment
can traumatize victims in a way that jeopardizes the victim's equal
access to education. The Department disagrees that these final
regulations are overly focused on addressing false allegations instead
of remedying sexual harassment. The Department notes that under Sec.
106.44(a), the Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as
defined in Sec. 106.30, consider the complainant's wishes with respect
to supportive measures, inform the complainant of the availability of
supportive measures with or without the filing of a formal complaint,
and explain to the complainant the process for filing a formal
complaint. Accordingly, complainants have more control over the process
to address their allegations of sexual harassment.
As previously explained, FERPA and its implementing regulations
define the term ``education records'' as meaning,
[[Page 30427]]
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.\1586\ The Department previously
stated: ``Under this definition, 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.''
\1587\ The Department's statement was made in response to a comment
about FERPA impairing due process in student disciplinary proceedings.
The Department does not think that evidence obtained as part of an
investigation pursuant to these final regulations that is directly
related to the allegations raised in a formal complaint can be
segregated and redacted because the evidence directly relates to
allegations by a complainant against a respondent and, thus,
constitutes an education record of both the complainant and a
respondent. A formal complaint that raises allegations against a
student-respondent is directly related to that student. The Department
is bound by the U.S. Constitution and must interpret Title IX and FERPA
in a manner that does not violate a person's due process rights,
including notice and an opportunity to respond. If a complainant or
respondent provides sensitive records such as medical records as part
of an investigation, then the parties must have an equal opportunity to
inspect and review information that constitutes evidence directly
related to the allegations raised in a formal complaint. If some of the
information in the medical records is not directly related to the
allegations raised in a formal complaint, then these final regulations
do not require a recipient to share the information that is not
directly related to the allegations raised in the formal complaint. As
previously explained, the Department has clarified in Sec.
106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or
otherwise use a party's records that are made or maintained by a
physician, psychiatrist, psychologist, or other recognized professional
or paraprofessional acting in the professional's or paraprofessional's
capacity, or assisting in that capacity, and which are made and
maintained in connection with provision of treatment to the party,
unless the recipient obtains that party's voluntary, written consent to
do so for the grievance process under Sec. 106.45(b). Accordingly, a
recipient would not have access to a party's medical records unless
that party gave the recipient voluntary, written consent to do so for a
grievance process under Sec. 106.45(b). If the party is not an
``eligible student,'' as defined in 34 CFR 99.3, then the recipient
must obtain the voluntary, written consent of a ``parent,'' as defined
in 34 CFR 99.3.
---------------------------------------------------------------------------
\1586\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
\1587\ 73 FR 74806, 74832-33 (Dec. 9, 2008).
---------------------------------------------------------------------------
The Department is not persuaded that these final regulations
require a recipient to violate State law. If a recipient knows that a
recording is unlawfully created under State law, then the recipient
should not share a copy of such unlawful recording. The Department is
not requiring a recipient to disseminate any evidence that was
illegally or unlawfully obtained. Similarly, the Florida laws that the
commenter cites, Florida Statutes Sec. Sec. 119.071(2)(g)(1) and
1012.31(3)(a)(1) concern public disclosure of records under sunshine
laws, and the Department is not requiring that a recipient widely
disseminate public records upon request. The Department's requirement
concerns disclosure solely to the other party to provide sufficient
notice and an opportunity to respond. Similarly, the Department takes
no position in these final regulations on whether records generated
during a Title IX grievance process must, or should, become subject to
disclosure under State sunshine laws. The Department also is not
regulating on FERPA in this rulemaking and takes no position in this
rulemaking as to FERPA's potential restrictions on the nonconsensual
disclosure of student's education records in the context of sunshine
law. Sunshine laws vary among states. Additionally, the manner in which
a request under State sunshine laws is handled depends on the unique
context and circumstances of the particular request. A recipient also
would not be required to release an IEP or Section 504 plan that is in
the recipient's possession. A recipient is required to provide any
evidence ``obtained as part of the investigation that is directly
related to the allegations raised in a formal complaint'' under Sec.
106.45(b)(5)(vi); however, the final regulations revise Sec.
106.45(b)(5)(i) to restrict a recipient from accessing, considering,
disclosing, or otherwise using a party's records that are made or
maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in the
professional's or paraprofessional's capacity, or assisting in that
capacity, and which are made and maintained in connection with
provision of treatment to the party, unless the recipient obtains that
party's voluntary, written consent to do so for a grievance process
under Sec. 106.45(b). If the party is not an ``eligible student,'' as
defined in 34 CFR 99.3, then the recipient must obtain the voluntary,
written consent of a ``parent,'' as defined in 34 CFR 99.3. When a
party offers an IEP or Section 504 plan as part of the evidence that a
recipient should consider, or has granted the recipient consent to use
those records in a Title IX grievance process, then the other party
should be able to inspect and review this evidence, if that evidence is
directly related to the allegations raised in a formal complaint.
Changes: None.
Comments: Several commenters argued that the proposed rules would
put schools in direct conflict with FERPA, and that FERPA does not
maintain an exception that would be applicable for all Title IX
grievance proceedings. Some noted that there is no express carve-out
under FERPA for such proceedings, and that schools will quickly be
caught trying to navigate the legal boundaries of their obligations.
The need to hire legal counsel to figure out these issues will be
immediate, asserted some commenters, and schools will have difficulty
believing that they really ought to be reviewing and potentially
sharing with other students one student's medical records, therapy
notes, or documents that contain information about prior sexual
history.
One commenter argued that there is an internal contradiction, given
that supportive measures are supposed to remain confidential, with
Sec. 106.45(b)(7), the provision regarding disclosure of the results
of grievance process.\1588\
---------------------------------------------------------------------------
\1588\ Commenter cited: Sec. 106.45(b)(7)(ii)(E).
---------------------------------------------------------------------------
One commenter stated that the proposed rules leave ambiguity about
whether FERPA will apply to conduct that is not covered by these
proposed regulations under Title IX because it does not rise to the
level of the definition of sexual harassment in Sec. 106.30, which
this commenter characterizes as narrower than the Department's past
definition.
Another commenter stated that the proposed rules give students more
rights than does FERPA, since time frames for production are shorter,
which the commenter believed to be bad policy. Several commenters
stated that schools need flexibility on which information is private
and which information is relevant to a claim of sexual harassment.
[[Page 30428]]
Discussion: As explained above, the Department disagrees that there
is any inherent conflict between FERPA and these final regulations,
which address sexual harassment under Title IX. The Department
administers both Title IX and FERPA and expressly provides in Sec.
106.6(e) that the obligation to comply with Part 106 of Title 34 of the
Code of Federal Regulations ``is not obviated or alleviated by the
FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.''
The Department offers technical assistance and will address compliance
with FERPA and Title IX, and recipients may consult with their own
counsel about compliance with various laws. As the Department
administers both FERPA and Title IX, the Department will not interpret
compliance with its regulations under Title IX to violate requirements
in its regulations under FERPA.
If a party (or the parent of a party) gives voluntary, written
consent to a recipient under Sec. 106.45(b)(5) to use the party's
medical records that are directly related to the allegations raised in
a formal complaint as part of its investigation, then the recipient
must provide both parties with an equal opportunity to inspect and
review such evidence. If some of the information in the medical records
is not directly related to the allegations raised in a formal
complaint, then these final regulations do not require a recipient to
share the information that is not directly related to the allegations
raised in the formal complaint. With respect to evidence of prior
sexual behavior, the Department revised Sec. 106.45(b)(6) to prohibit
evidence about the complainant's sexual predisposition or prior sexual
behavior unless such evidence is offered to prove that someone other
than the respondent committed the conduct alleged by the complainant or
to prove consent. If a recipient obtains evidence about a party's
sexual predisposition or prior sexual behavior that is directly related
to the allegations raised in a formal complaint, the recipient should
allow both parties an equal opportunity to inspect and review such
evidence to be able to prepare to respond to it or object to its
introduction in the investigative report or at the hearing.
There is no internal contradiction that supportive measures should
be confidential and that the result of a grievance process under Sec.
106.45 should be made known to both parties. A complainant must be
offered and may receive supportive measures irrespective of whether the
complainant files a formal complaint, and the supportive measures that
a complainant or a respondent receives typically relate only to them
and must be kept confidential pursuant to Sec. 106.30. The definition
of supportive measures in Sec. 106.30 clarifies that it may be
necessary to notify the other party of a supportive measure if the
supportive measure requires both the complainant and the respondent's
cooperation (i.e., mutual restrictions on contact between the parties).
The result at the end of a grievance process under Sec. 106.45,
including any sanctions and whether remedies will be provided to a
complainant, impact both parties and can, and should, be part of the
written determination simultaneously sent to both parties. The
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 and activity. The Department revised
Sec. 106.45(b)(7)(ii)(E) to require a recipient to state whether
remedies will be provided to the complainant but not what remedies will
be provided. Thus, the recipient may note in the written determination
only that a complainant will receive remedies but should not note in
the written determination that the recipient, for example, will change
the complainant's housing arrangements as part of a remedy. A
respondent should know whether the recipient will provide remedies to
the complainant because the respondent should be aware that the
respondent's actions denied the complainant equal access to the
recipient's education program or activity. Similarly, the parties
should both know the rationale for the result as to each allegation,
including a determination regarding responsibility, as provided in
Sec. 106.45(b)(7)(ii)(E), because due process principles require the
recipient to provide a basis for its determination. The rationale also
will reveal whether there was any unlawful bias such that there may be
grounds for appeal under Sec. 106.45(b)(8)(i)(C).
As to the commenter's question about the applicability of FERPA to
conduct that is not defined in Sec. 106.30, FERPA applies to all
education records as defined in 20 U.S.C. 1232g(a)(4)(A) and 34 CFR
99.3. Whether FERPA applies does not depend on whether the conduct at
issue satisfies the definition defined in Sec. 106.30. Accordingly,
there is no inherent conflict between FERPA, and these final
regulations addressing sexual harassment under Title IX.
The Department does not believe that these final regulations give
students more rights than FERPA due to short time frames for
production. The Department acknowledges that under 20 U.S.C.
1232g(a)(1)(A) and Sec. 99.10(b) in the FERPA regulations, an
educational agency or institution must comply with a request for access
to covered education records within a reasonable period of time, but
not more than 45 days after it has received the request. FERPA,
however, was only intended to establish a minimum Federal standard for
access to education records \1589\ and thus other laws may require
access to education records in a shorter time frame than FERPA does. A
recipient, moreover, has an obligation to include reasonably prompt
time frames for the conclusion of a grievance process as described in
Sec. 106.45(b)(1)(v). Taking 45 days to respond to a request for
access to records would not provide a reasonably prompt time frame for
the conclusion of a grievance process. The ten-day time frame in these
final regulations governs the minimum length of time that the parties
have to submit a written response to the recipient after the recipient
sends to each party and the party's advisor, if any, the evidence
subject to inspection and review. These final regulations do not
require a recipient to obtain evidence within a specific time frame,
although a recipient is required to include reasonably prompt time
frames for the conclusion of a grievance process pursuant to Sec.
106.45(b)(1)(v) and to respond promptly under Sec. 106.44(a).
Additionally, the school has some discretion to determine what evidence
is directly related to the allegations in a formal complaint.
---------------------------------------------------------------------------
\1589\ ``Joint Statement in Explanation of the Buckley/Pell
Amendment [to FERPA],'' 120 Cong. Rec. 39858, 39863 (Dec. 13, 1974).
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters expressed concern about the fact that
private information would be readily shared with another party. One
commenter asserted that the proposed regulations facilitate--rather
than discourage--retaliation by having an opposing party learn
confidential information about the complainant. One commenter argued
that giving students access to other students' files would lead to
bullying and intimidation. Commenters suggested that even if one minor
portion of a document is relevant--perhaps a medical examination that
occurred on the night of an alleged rape--the rest of the medical
information may include a wealth of information that is totally
irrelevant to the complaint, and should be redacted. A commenter argued
that some documents may involve non-parties such that disclosing a
complainant's documents to a respondent could reveal private
[[Page 30429]]
information that has nothing to do with the complainant. The commenter
suggested that the Department modify the proposed regulations to insist
that schools redact irrelevant information from information produced to
the parties.
Similarly, commenters suggested that the disadvantage to the
privacy issues would always fall, asymmetrically, on complainants.
These commenters stated respondents will typically have little
information in their student file that is relevant to the accusation--
no rape kits, no medical or counseling information, etc.--so providing
student files is asymmetrically damaging to a complainant.
Many commenters contended that there will be a chilling effect on
student-complainants obtaining counseling services, if counseling
records must be disclosed to a respondent. Some commenters stated that
even victims who do report will often dismiss their own complaints once
they realize that there is a chance of being humiliated by their
records being disclosed to their harasser, and for those records to go
public. One commenter stated that this effect would be particularly
damaging to women of color, arguing that these women report sexual
harassment at very low rates, and would be deterred from reporting if
their privacy were at stake.
Some contended that even student-witnesses will be unwilling to
come forward, believing that their student records might also be
subject to discovery by the respondent. These commenters stated that
student-witnesses will be subject to threats and intimidation, as well
as potential witness tampering.
Discussion: The Department disagrees that these final regulations
will lead to retaliation. As a precaution, the Department adopts a
provision in Sec. 106.71 to expressly prohibit retaliation to address
the commenter's concerns. This retaliation provision is broad and would
prohibit threats and intimidation as well as interfering with potential
witnesses.
The Department also disagrees that the parties will be able to
obtain information that is unrelated to the allegations raised in a
formal complaint. Section 106.45(b)(5)(vi) only requires a recipient to
provide both parties an equal opportunity to inspect and review any
evidence that is directly related to the allegations raised in a formal
complaint as part of the investigation. Accordingly, if there is
information in a medical record that is not directly related to the
allegations raised in a formal complaint, these final regulations do
not require a recipient to share such information. Consistent with
FERPA, these final regulations do not prohibit a recipient from
redacting personally identifiable information from education records,
if the information is not directly related to the allegations raised in
a formal complaint. Accordingly, the Department does not need to revise
the final regulations to specifically address redactions. A recipient,
however, should be judicious in redacting information and should not
redact more information than is necessary under the circumstances so as
to fully comply with obligations under Sec. 106.45.
The Department disagrees that its final regulations asymmetrically
affect complainants, as respondents may have sensitive information too.
For example, the recipient may obtain information from a criminal
investigation of a respondent. Additionally, the rape shield provisions
in Sec. 106.45(b)(6) apply only to complainants.
The Department disagrees that these final regulations will have a
chilling effect on reporting. A complainant is not required to submit
counseling records to a recipient as part of an investigation. If the
complainant does not want a respondent to inspect and review any
counseling records that are directly related to allegations raised in a
formal complaint, then the complainant is not required to release such
counseling records to the recipient under Sec. 106.45(b)(5)(i). (The
Department notes that the same is true for respondents.) These final
regulations do not foster complainants or respondents being humiliated
and certainly do not result in their records being made public. The
recipient is simply giving both parties an equal opportunity to inspect
and review any evidence obtained as part of the investigation that is
directly related to the allegations raised in a formal complaint so
that each party can meaningfully respond to the evidence prior to the
conclusion of the investigation. This provision is critical for a
complainant to provide evidence in support of allegations and for a
respondent to provide evidence to challenge allegations. This provision
also allows each party an opportunity to meaningfully respond to the
evidence that is directly related to the allegations.
The Department disagrees that these final regulations, including
the provision about an equal opportunity to inspect and review any
evidence, will result in increased harm to women of color. These final
regulations apply to all persons, irrespective of race, national
origin, or color. Some commenters suggested that respondents who are
persons of color have been more severely impacted by the lack of due
process protections in a grievance process. These final regulations
provide everyone the same fair and impartial grievance process
described in Sec. 106.45.
Changes: The Department adopts a provision in Sec. 106.71 to
expressly prohibit retaliation.
Comments: Some commenters were not concerned about privacy issues
for respondents who have been found responsible for sexual harassment.
Some suggested that if a student is found responsible, that finding
should follow a student if they try to enroll in a new school so as to
help keep students safe in the new school. Some commenters asserted
using FERPA to protect these students is unfair and endangers students
at other schools when respondents who have been found responsible
transfer schools. Other commenters stated that the final regulations
should provide that a student's disciplinary measures cannot be
conveyed to another college under FERPA, so as to avoid destroying
their lives by having a finding of responsibility follow them to other
schools.
Discussion: FERPA and its implementing regulations, 20 U.S.C.
1232g(b)(6) and 34 CFR 99.31(a)(13), 99.31(a)(14), and 99.39, address
the conditions permitting the disclosure, without prior written
consent, to an alleged victim of a crime of violence or a nonforcible
sex offense and to the general public of the final results of any
disciplinary proceeding conducted by an institution against the alleged
perpetrator of such crime or offense with respect to such crime or
offense. Recipients may have the discretion to disclose, without prior
written consent, personally identifiable information from education
records of student-respondents who have been found responsible for a
violation of Title IX to other third parties under other exceptions to
consent in FERPA. The Department notes that such disclosures of
personally identifiable information are permissive and not mandatory
under FERPA, and the Department takes no position in these final
regulations as to whether a recipient should disclose any personally
identifiable information under FERPA. For example, an exception in
FERPA and its implementing regulations at 20 U.S.C. 1232g(b)(1)(B) and
34 CFR 99.31(a)(2) and 99.34 permits a school to disclose, without
prior, written consent, personally identifiable information contained
in a student's education records to another school in which the student
seeks or intends to enroll, or where the student is already enrolled so
long as the disclosure is for purposes
[[Page 30430]]
related to the student's enrollment or transfer. The sending school may
make the disclosure if it has included in its annual notification of
FERPA rights a statement that it forwards education records in such
circumstances. Otherwise, the sending school must make a reasonable
attempt to notify the parent or eligible student in advance of making
the disclosure, unless the parent or eligible student has initiated the
disclosure. The school also must provide a parent or an eligible
student with a copy of the records that were released, if requested by
the parent or eligible student, and an opportunity to seek to amend the
education records. FERPA and its implementing regulations also provide
that an educational agency or institution may include and disclose,
without prior, written consent, appropriate information in a student's
education records concerning disciplinary information taken against
such student for conduct that posed a significant risk to the safety or
well-being of that student, other students, or other members of the
school community to teachers and school officials, within the agency or
institution or in other schools, who have legitimate educational
interests in the behavior of the student.\1590\ Similarly, the Clery
Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34
CFR 668.46(k)(3)(iv), require an institution to provide the result of a
proceeding, including any sanctions imposed by the institution, to both
parties. In this manner, a recipient has discretion as to whether to
share information with another school about a respondent.
---------------------------------------------------------------------------
\1590\ 20 U.S.C. 1232g(h) and 34 CFR 99.36(b). As explained in
the ``Section 106.44(c) Emergency Removal'' subsection in the
``Additional Rules Governing Recipients' Response'' subsection of
the ``Section 106.44 Recipient's Response to Sexual Harassment,''
section of this preamble, the Department revised Sec. 106.44(c),
which concerns emergency removal, to better align with the
disclosure, without prior written consent, of personally
identifiable information from education records in a health and
safety emergency under FERPA and its implementing regulations.
Compare Sec. 106.44(c) with 20 U.S.C. 1232g(h) and 34 CFR 99.36.
---------------------------------------------------------------------------
The Department does not regulate what information schools must
share when a student transfers to a different school and declines to do
so here. Requiring institutions to share information goes beyond the
mandate of Title IX to prohibit discrimination on the basis of sex in a
particular recipient's education program or activity. Recipients may
share such information as long as doing so is permissible under other
applicable Federal, State, and local laws.
Changes: None.
Comments: Some commenters expressed concern that in cases where a
formal complaint must be opened by a Title IX Coordinator, as opposed
to by a student or employee reporting sexual harassment, that the
victim's confidential information will be subject to discovery despite
declining to file a formal complaint. This leaves students and
employees with no way to protect their privacy and would lead to a
dramatic chilling effect on reporting.
Discussion: The Department notes that the final regulations
entirely removed proposed provision Sec. 106.44(b)(2) that would have
required a Title IX Coordinator to file a formal complaint upon
receiving multiple reports against the same respondent. The final
regulations do not mandate circumstances where a Title IX Coordinator
is required to sign a formal complaint; rather, the final regulations
leave a Title IX Coordinator with discretion to sign a formal
complaint. If the Title IX Coordinator signs a formal complaint against
the wishes of the complainant, then the recipient likely will have
difficulty obtaining evidence from the complainant that is directly
related to the allegations in a formal complaint. As previously
explained, the Department revised Sec. 106.45(b)(5)(i) to specifically
state that the recipient cannot access, consider, disclose, or
otherwise use a party's records that are made or maintained by a
physician, psychiatrist, psychologist, or other recognized professional
or paraprofessional acting in the professional's or paraprofessional's
capacity, or assisting in that capacity, and which are made and
maintained in connection with the provision of treatment to the party,
unless the recipient obtains that party's voluntary, written consent to
do so for a grievance process under this section (if a party is not an
``eligible student,'' as defined in 34 CFR 99.3, then the recipient
must obtain the voluntary, written consent of a ``parent'' as defined
in 34 CFR 99.3). Accordingly, a recipient will not be able to access,
consider, disclose or otherwise use such confidential records without a
party's consent.
The complainant is not required to participate in the process or to
provide any information to the Title IX Coordinator and in fact, the
final regulations expressly protect a complainant (or other person's)
right not to participate in a Title IX proceeding by including such
refusal to participate in the anti-retaliation provision in Sec.
106.71. If the recipient has commenced a Sec. 106.45 grievance process
without a cooperating complainant, the recipient must still obtain
evidence about the allegations, and the complainant and respondent must
have an opportunity to inspect, review, and respond to such evidence.
Such evidence would be directly related to the respondent under FERPA's
definition of ``education records'' \1591\ because it is related to the
allegations against the respondent. The respondent would have access to
such education records under both FERPA and these final regulations
implementing Title IX, and the Department interprets both FERPA and
Title IX consistent with constitutionally guaranteed due process
rights. A respondent should have notice of and a meaningful opportunity
to respond to the evidence about the allegations against the
respondent. Full and fair adversarial procedures increase the
probability that the truth of allegations will be accurately
determined,\1592\ and reduce the likelihood that impermissible sex bias
will affect the outcome. Accordingly, the respondent, like the
complainant, must have the opportunity to inspect, review, and respond
to such evidence. Even if a complainant chooses not to participate in a
Sec. 106.45 grievance process initiated by the Title IX Coordinator's
signing of a formal complaint, the complainant is still treated as a
party \1593\ entitled to, for example, the written notice of
allegations under Sec. 106.45(b)(2), notice of meetings or interviews
to which the complainant is invited under Sec. 106.45(b)(5)(v), and a
copy of the evidence subject to inspection and review under Sec.
106.45(b)(5)(vi). Thus, the complainant would at least know what
evidence was obtained and have the opportunity to respond to that
evidence, if the complainant so desired.\1594\
---------------------------------------------------------------------------
\1591\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
\1592\ The adversarial ``system is premised on the well-tested
principle that truth--as well as fairness--is `best discovered by
powerful statements on both sides of the question.''' Penson v.
Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the
Judge Have a Right to Qualified Counsel?, 61 Am. Bar Ass'n J. 569,
569 (1975)).
\1593\ See Sec. 106.30 defining a ``complainant'' as ``an
individual who is alleged to be the victim of conduct that could
constitute sexual harassment.'' The final regulations removed the
phrase ``or on whose behalf the Title IX Coordinator filed a formal
complaint'' to reduce the likelihood that a complainant would feel
pressured to participate in a grievance process against the
complainant's wishes. Thus, even where the Title IX Coordinator
signs the formal complaint that initiates the grievance process (as
opposed to the complainant filing the formal complaint), the
complainant is treated as a party during the grievance process yet
the complainant's right not to participate is protected (for
example, under the anti-retaliation provision in Sec. 106.71).
\1594\ The final regulations protect a complainant's right to
seek the kind of response from a recipient that best meets the
complainant's needs (i.e., supportive measures, a grievance process,
or both) and nothing in the final regulations requires a complainant
to participate in a grievance process against the complainant's
wishes, even where the Title IX Coordinator signed a formal
complaint initiating a grievance process against the respondent.
Commenters pointed out the importance of respecting complainant
autonomy and asserted that for a variety of reasons a complainant
may not wish to file a formal complaint, yet may decide later to
file a formal complaint or to participate in a grievance process
initiated by the Title IX Coordinator. The final regulations balance
these interests in deference to a complainant's autonomy and control
as to whether initiating or participating in a grievance process
best serves the complainant's needs.
---------------------------------------------------------------------------
[[Page 30431]]
The Department disagrees that these final regulations will chill
reporting. These final regulations will encourage complainants to
report allegations of sexual harassment because complainants must be
offered supportive measures irrespective of whether they choose to file
a formal complaint under Sec. 106.44(a).\1595\ These final regulations
provide a fair, impartial, and transparent grievance process for formal
complaints that helps ensure that all parties receive the opportunity
to inspect and review any evidence obtained as part of an investigation
that is directly related to the allegations in a formal complaint.
---------------------------------------------------------------------------
\1595\ Sec. 106.71, prohibiting retaliation, protects any
person's right not to participate in a Title IX grievance process,
thereby buttressing a complainant's right under Sec. 106.44(a) to
receive supportive measures regardless of whether the complainant
files a formal complaint or otherwise participates in a grievance
process.
---------------------------------------------------------------------------
Changes: The Department revised Sec. 106.45(b)(5)(i) to
specifically state that the recipient cannot access, consider,
disclose, or otherwise use a party's records that are made or
maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in the
professional's or paraprofessional's capacity, or assisting in that
capacity, and which are made and maintained in connection with the
provision of treatment to the party, unless the recipient obtains that
party's voluntary, written consent to do so for a grievance process
under this section (if a party is not an ``eligible student,'' as
defined in 34 CFR 99.3, then the recipient must obtain the voluntary,
written consent of a ``parent'' as defined in 34 CFR 99.3).
Comments: Commenters expressed concerns about schools producing
information to students. Some contended that the proposed rules
contained provisions regarding the content of the required notice that
directly conflict with FERPA. Other commenters argued that the right to
appeal is generally a safety net against a lack of evidence, such that
there is no need for schools to produce literally all evidence directly
related to the allegation. One commenter suggested that the proposed
rules would likely create an inconsistency with all other forms of
student misconduct investigations, where schools generally do not
provide FERPA-protected education records to the accused student. Some
argued that this would put Title IX in ``least-favored nation'' status,
such that only Title IX allegations were likely to trigger these
privacy concerns, as opposed to allegations based on race or disability
harassment.
With respect to production of documents, many commenters expressed
concern that the proposed rules did not sufficiently clarify what is
discoverable and what is confidential. Commenters stated that schools
may opt to collect as much information as possible in their
investigations, out of fear that OCR will find them in violation of the
new Title IX rules, but that will also mean access to a host of
irrelevant information being given to the parties. Once in the hands of
students, asserted commenters, the information is totally unprotected.
The proposed rule, commenters argued, does not prohibit parties from
photographing and texting even highly confidential information about
the other party, even when young children are involved. One commenter
suggested that there should be some exceptions on production, such as
nude photos or other photos of a graphic sexual nature. Even the effort
to ensure that technological platforms do not allow sharing is
inadequate, commenters asserted, because smart phones are ubiquitous,
and because many schools will simply operate out of compliance with
this requirement, due to a lack of funds for technological updates.
Other commenters disagreed, however, stating that it would be better to
allow easier access to electronic documents, since the inability to cut
and paste from materials would make preparing one's defense more
difficult.
Some commenters argued that a school having to review so much
evidence prior to production will increase the cost of attorneys and
advisors who need to be paid to review all evidence, turning the Title
IX process into an expensive one. Some commenters stated that the
natural result of this process is that students and employees in Title
IX proceedings will try to hire attorneys to redact their own evidence
before giving it to schools.
By way of contrast, some commenters argued that the proposed rules
offer respondents more disclosure of exculpatory evidence than the
Brady case does in the criminal context, which is anomalous for a
noncriminal proceeding in a school setting. These commenters stated
that under Brady, criminal prosecutors only have to disclose
exculpatory evidence. They also stated that prosecutors do not have to
produce evidence about sexual contact with the alleged perpetrator in
the past, which is contrary to the proposed rule. Apart from
prosecutors, commenters argued that police officers need not circulate
draft reports to the people involved in a crime scene investigation,
which is seemingly what commenters believed has to happen in the Title
IX context.
One commenter stated that the production of so much evidence will
jeopardize law enforcement investigations. Another commenter suggested
that Title IX administrators will tell complainants not to submit
certain evidence, out of fear that it will be produced to the
respondent. One commenter stated that parties would strategically
introduce evidence of academic performance and perhaps sexual history
in order to embarrass the other party, and deter them from continuing
the process; the commenter also suggested that introducing such
evidence might bias an adjudicator against the other party. Even in the
best cases, asserted commenters, adjudicators would be forced to weigh
whether evidence was relevant, and forced to spend time and energy on
making rulings on the admissibility of documents.
Discussion: As previously explained, there is no inherent conflict
between these final regulations and FERPA. An appeal right does not
address the concern that parties should have access to the universe of
evidence obtained as part of the investigation that is directly related
to the allegations raised in a formal complaint. Having such evidence
will help parties adequately prepare for a hearing. These final
regulations do not require disclosing education records in violation of
FERPA as the Department has previously interpreted FERPA to allow for
the disclosure of records that are directly related to a particular
student in the context of impairing due process in student disciplinary
proceedings where the information could not be segregated and redacted
without destroying the meaning of the education records. These final
regulations require disclosure of evidence that is directly related to
the allegations raised in a formal complaint. As previously stated,
these final regulations do not require a recipient to share information
in a record that does
[[Page 30432]]
not directly relate to the allegations in a formal complaint.
These final regulations address sexual harassment, and the
Department acknowledges that recipients may use a different grievance
process to address sex discrimination that is not sexual harassment
just as a recipient may use a different grievance process to address
allegations related to race and disability. A grievance process to
address race or disability concerns different considerations than a
grievance process to address sexual harassment.
The Department disagrees that these final regulations require a
recipient to provide completely irrelevant evidence because Sec.
106.45(b)(5)(vi) expressly states that the recipient must provide ``any
evidence obtained as part of the investigation that is directly related
to the allegations raised in a formal complaint.'' The only evidence
that a recipient should be providing is evidence that is directly
related to the allegations raised in a formal complaint. These final
regulations neither require nor prohibit a recipient to use a file
sharing platform that restricts the parties and advisors from
downloading or copying the evidence. Recipients also may specify that
the parties are not permitted to photograph the evidence or disseminate
the evidence to the public. Recipients thus have discretion to
determine what measures are reasonably appropriate to allow the parties
to respond to and use the evidence at a hearing, while preventing the
evidence from being used in an impermissible manner as long as such
measures apply equally to both parties under Sec. 106.45(b). Such
measures may be used to address sensitive materials such as photographs
with nudity.
The Department agrees that a recipient will need to review all the
evidence obtained as part of the investigation and determine what
evidence is directly related to the allegations raised in a formal
complaint. The Department disagrees that attorneys must conduct this
review as lay persons also may determine what evidence is directly
related to the allegations raised in a formal complaint.
Irrespective of what information is available in a criminal case,
the Department believes that both parties should have the opportunity
to inspect and review any evidence obtained as part of an investigation
that is directly related to the allegations raised in a formal
complaint. The grievance process in Sec. 106.45 does not have all of
the same protections as a court proceeding in a criminal case. For
example, these final regulations do not contain a comprehensive set of
rules of evidence. Neither party may issue a subpoena to gather
information from each other or the recipient for purposes of the
grievance process under Sec. 106.45. Neither of the parties has a
right to effective assistance of counsel under these final regulations,
whereas a criminal defendant does have that right throughout the
criminal proceeding. Under these final regulations, the parties only
receive an advisor, who does not need to be an attorney, to conduct
cross-examination on behalf of that party so as to ensure that the
parties do not directly cross-examine each other. The parties should
have an equal opportunity to review and inspect evidence that directly
relate to the allegations raised in a formal complaint as these
allegations necessarily relate to both parties. Even if these final
regulations did not exist, parties who are students would have a right
to inspect and review records directly related to the allegations in a
formal complaint under FERPA, 20 U.S.C. 1232g(a)(1)(A)-(B), and its
implementing regulations, 34 CFR 99.10 through 99.12, because these
records would directly relate to the parties in the complaint.\1596\
---------------------------------------------------------------------------
\1596\ 73 FR at 74832-33.
---------------------------------------------------------------------------
With respect to evidence of prior sexual behavior, the Department
revised Sec. 106.45(b)(6) to prohibit all evidence (and not just
questions) about the complainant's sexual behavior or predisposition
unless such evidence is offered to prove that someone other than the
respondent committed the conduct alleged by the complainant or to prove
consent. If a recipient obtains evidence about a party's sexual
behavior or predisposition that is directly related to the allegations
raised in a formal complaint, the recipient should allow both parties
an equal opportunity to inspect and review such evidence to be able to
prepare to respond to it or object to its inclusion in the
investigative report and its use at the hearing.
These final regulations will not jeopardize or delay a law
enforcement investigation, which is a completely separate process. If
there is a concurrent law enforcement investigation, then a recipient
may temporarily delay or extend the grievance process under Sec.
106.45(b)(1)(v), as long as the recipient documents the good cause for
the temporary delay or extension. A Title IX Coordinator should not
encourage or discourage a party from submitting evidence and should
inform both parties that the grievance process will provide them with
an opportunity to inspect and review any evidence obtained as part of
the investigation that is directly related to the allegations raised in
a formal complaint. These final regulations do not allow a Title IX
Coordinator to restrict a party's ability to provide evidence. If a
Title IX Coordinator restricts a party from providing evidence, then
the Title IX Coordinator would be violating these final regulations and
may even have a conflict of interest or bias, as described in Sec.
106.45(b)(1)(iii).
If the academic record of a party is directly related to the
allegations of sexual harassment, then the recipient may obtain,
access, use, and disclose such evidence as part of the investigation
under Sec. 106.45. For example, if a complainant alleges that the
complainant frequently missed classes as a result of the sexual
harassment, then the attendance records of the complainant for that
class are directly related to these allegations. Accordingly, a
recipient may obtain or a party may request the recipient to obtain
such attendance records as part of an investigation under Sec. 106.45,
if such records are directly related to the allegations in the formal
complaint. Similarly, if a student-complainant alleges that an
employee-respondent sexually harassed them on a field trip and the
employee-respondent or that student-complainant did not attend the
field trip, then the employee-respondent may provide the attendance
records for the field trip, as these attendance records are directly
related to the allegations of sexual harassment. Decision-makers should
be able to determine what evidence is relevant at a hearing. Decision-
makers also are capable of objectively considering the evidence without
developing a bias for or against a complainant or respondent and will
receive training about conflicts of interest and bias from the
recipient under Sec. 106.45(b)(1)(iii).
Changes: None.
Comments: Some commenters raised questions about procedural aspects
of the grievance procedures. One stated that a single rule for the
number of days before certain steps of the process occurs is arbitrary.
Some cases will take longer than others to review the evidence,
asserted a commenter. One commenter asked whether, if evidence is not
adequately uploaded and available to the parties ten days before a
hearing, must the hearing be delayed, or can the parties agree to keep
the hearing date in place, and mutually waive whatever requirements the
proposed rules implement? The same commenter asked whether, if no
waiver occurs and one of the parties objects to holding the hearing but
the school insists on proceeding, must the
[[Page 30433]]
evidence that was produced only nine days prior to the hearing be
struck?
One commenter argued the proposed rules are highly prescriptive,
and that is inconsistent with the 2018 Report issued by the Federal
Commission on School Safety,\1597\ which stated that overly
prescriptive Federal standards burdened local schools.
---------------------------------------------------------------------------
\1597\ Commenters cited: Dep't. of Education et al., Final
Report of the Federal Commission on School Safety (Dec. 18, 2018),
https://www2.ed.gov/documents/school-safety/school-safety-report.pdf.
---------------------------------------------------------------------------
Discussion: These final regulations require that the parties have
at least ten days to submit a written response to the evidence that is
directly related to the allegations raised in a formal complaint under
Sec. 106.45(b)(5)(vi) and that the parties have the investigative
report at least ten days prior to a hearing under Sec.
106.45(b)(5)(vii). The Department does not define whether these ten
days are calendar days or business days, and recipients have discretion
as to whether to calculate ``days'' by calendar days, business days,
school days, or other reasonable method. Recipients also may give the
parties more than ten days in each circumstance.
If the investigative report that fairly summarizes relevant
evidence is not ready at least ten days prior to a hearing, then the
recipient should wait to hold the hearing until the parties have at
least ten days with the investigative report pursuant to Sec.
106.45(b)(6)(i). If a recipient does not give the parties at least ten
days with the investigative report prior to a hearing, the recipient
will be found in violation of these final regulations, irrespective of
whether the parties waive the requirements in these final regulations.
The Department disagrees that these final regulations are overly
prescriptive because recipients still have ample discretion. For
example, recipients determine what supportive measures to offer, the
standard of evidence, how to weigh the evidence to reach the
determination regarding responsibility, the sanction, and any remedies.
Changes: None.
Comments: Several commenters suggested that there was tension
between the proposed rules and FERPA, and argued that there is a
conflict between the proposed rules and 20 U.S.C. 1232g(b)(1), since
records would need to be disclosed as part of the grievance process
even without the written consent of the parties involved. One commenter
suggested that the final regulations expressly state that ``nothing in
this part shall be read in derogation of the FERPA statute, 20 U.S.C.
1232g, or FERPA regulations, 34 CFR part 99.'' In support of that
argument, commenters stated that schools know FERPA well, that FERPA
guidance is well-established, and should control so that schools do not
have to modify their existent knowledge of privacy issues. One
commenter suggested that schools and students should be bound not to
disclose any information if the disclosure would be inconsistent with
FERPA's provisions.
Discussion: As explained earlier, the Department disagrees that
there is an inherent conflict between these final regulations and
FERPA. FERPA and its implementing regulations define the term
``education records'' as meaning, with certain exemptions, 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.\1598\ The Department previously stated: ``Under this
definition, 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.'' \1599\ The Department made
this statement in response to comments regarding impairing due process
in student discipline cases in its notice-and-comment rulemaking to
promulgate regulations to implement FERPA.\1600\ The evidence and
investigative report that is being shared under these final regulations
directly relate to the allegations in a complaint and, thus, directly
relate to both the complainant and respondent.
---------------------------------------------------------------------------
\1598\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
\1599\ 73 FR 74806, 74832-33 (Dec. 9, 2008).
\1600\ Id.
---------------------------------------------------------------------------
As explained earlier, the Department's interpretation in the 2001
Guidance still stands that ``if there is a direct conflict between
requirements of FERPA and requirements of Title IX, such that
enforcement of FERPA would interfere with the primary purpose of Title
IX to eliminate sex-based discrimination in schools, the requirements
of Title IX override any conflicting FERPA provisions.'' \1601\
---------------------------------------------------------------------------
\1601\ 2001 Guidance at vii.
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters suggested that the final regulations
ought to model their FERPA language on the Clery Act regulations,
namely 34 CFR 668.46(l), because the Clery Act regulations clearly
state that compliance with the Clery Act does not violate FERPA but,
commenters argued, proposed Sec. 106.6(e) does not clearly assure
recipients that complying with these Title IX regulations does not
violate FERPA. Other commenters cited to 34 CFR 668.46(k)(3)(B)(3) and
suggested that the final regulations should clearly state that medical
records would not be released without the written authorization
required in 45 CFR 164.508(b), implementing the Health Insurance
Portability and Accountability Act of 1996 (``HIPAA''), Public Law 104-
191, to mirror VAWA. In addition, commenters suggested that any release
of medical records be consistent with 45 CFR 164.508(b), which is part
of the Standards for Privacy of Individually Identifiable Health
Information (``Privacy Rule'') adopted under HIPAA. Other commenters
suggested that the Department require a data security standard
benchmarked to HIPAA. This commenter stated that information about
sexual assault may include medical information as sensitive Protected
Health Information (PHI). Information about sexual history and abuse
would be valuable to criminals and State adversaries. The commenter
argued that because HIPAA is a known standard, familiar to technical
support professionals, and has allowances for anonymization for
research, using the data security standard as provided for in HIPAA
will allow anonymized data for use in secure research that may inform
policies and that absent a data security standard, information
technology (IT) personnel will not be aware of any obligation to make
sure that computers being used to create and store the sensitive
information contained in evidence and investigative reports in Title IX
grievance processes need to meet data security protocols.
Other commenters stated that even given these confines, FERPA's
definition of ``directly related to'' is too broad. These commenters
expressed concern that schools will get it wrong when trying to
determine which evidence is directly related to certain allegations,
which means that some highly sensitive student records will be
produced, even when they should not be.
Other commenters disagreed, stating that the Department should add
a sentence after the ``directly related to'' language that reads as or
similar to the following: ``In determining whether evidence is
`directly related to the allegations obtained as part of the
investigation,' the recipient must construe the phrase `directly
related to' broadly and in favor of production of any evidence
obtained.''
[[Page 30434]]
Discussion: The Department disagrees that it needs to adopt
language in Sec. 668.46(l) and expressly state that ``compliance [with
these final regulations] does not constitute a violation of FERPA.''
The Department does not believe that there is any inherent conflict
between these final regulations and FERPA. Additionally, these final
regulations expressly state in Sec. 106.6(e) that the obligation to
comply with these final regulations ``is not obviated or alleviated by
the FERPA statute, 20 U.S.C. 1232g or FERPA regulations, 34 CFR part
99.'' Such a statement sufficiently addresses concerns that compliance
with these final regulations does not violate FERPA.
The Department does not enforce HIPAA, which protects the privacy
and security of certain health information. The regulations,
implementing HIPAA, which include the Privacy Rule and its provisions
at 45 CFR 164.508(b), apply to ``covered entities,'' and a recipient
may or may not be a covered entity. Accordingly, a recipient may not be
required to comply with HIPAA, and the Department will not require
recipients to comply with HIPAA through these final regulations. A
recipient must comply with all laws that apply to it and is best
positioned to determine whether and how HIPAA may apply to it. A
recipient's grievance procedures and grievance process, which are
required to be published pursuant to Sec. 106.8(c), should provide
notice to the parties that they will receive an equal opportunity to
inspect and review any evidence obtained as part of an investigation
that is directly related to the allegations raised in a formal
complaint of sexual harassment. Indeed, Sec. 106.8(c) requires the
recipient to notify applicants for admission and employment, students,
parents or legal guardians of elementary and secondary school students,
employees, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient
notice of the recipient's grievance procedures and grievance process.
If a party does not want the other party to receive any of the party's
medical records, then the party (or the party's parent, if applicable)
is not required to provide such medical records to the recipient as
part of the investigation, nor to provide consent to the recipient with
respect to medical and other treatment records for which a recipient is
required to obtain voluntary, written consent before accessing or using
such records, under Sec. 106.45(b)(5)(i). Recipients do not have
subpoena power, and as the commenter implies, a recipient will not be
able to receive a party's medical records from a covered entity under
the regulations implementing HIPAA without the party's consent.
The Department also does not wish to require that recipients use a
data security standard benchmarked to HIPAA or its Privacy Rule because
the Department does not administer HIPAA and does not wish to add yet
another set of regulations governing the same type of information that
HIPAA may cover. Recipients that are subject to both HIPAA and these
final regulations would then be subject to two different sets of data
security standards governing the same type of information, as the
Department may interpret its data security provisions differently than
other Federal agencies such as the U.S. Department of Health and Human
Services, which administers HIPAA. Although the Department encourages
recipients to use secure data systems, Title IX does not directly
concern data security, and the Department's proposed regulations did
not directly address data security requirements.
The Department disagrees that ``directly related to'' is too broad
or not broad enough. The Department purposefully chose ``directly
related to,'' as such a requirement aligns with FERPA, and recipients
that are subject to FERPA will understand how to apply such a
requirement. The Department also acknowledges that recipients have
discretion to determine what constitutes evidence directly related to
the allegations in a formal complaint. The purpose of the provision in
Sec. 106.45(b)(5)(vi) is to give parties an opportunity to inspect,
review, and respond to evidence that may be used to support or
challenge allegations made in a formal complaint prior to the
investigator's completion of the investigative report. The recipient
certainly cannot exclude any evidence that the investigator intends to
use in the investigative report.
Changes: None.
Comments: Several commenters had concerns about privacy with
respect to the evidence-sharing provisions of the grievance procedures.
Commenters stated, for instance, that only ``non-privileged'' materials
ought to be shared during the process, and suggested that medical
records ought to be considered privileged. Similarly, some commenters
suggested that financial records of students should be considered
privileged, and therefore not produced.
Commenters asserted that the final regulations should clarify that
under no circumstances will a school access campus medical and
counseling records. These records, stated commenters, would include the
results of medical tests, rape kits, and forensic evidence that is
covered by HIPAA and FERPA.
Discussion: Nothing in these final regulations requires a recipient
to share materials subject to the attorney-client privilege in the
recipient's possession with a party as part of a Sec. 106.45 grievance
process. If a party holds the attorney-client privilege and chooses to
waive the privilege to share records protected by the attorney-client
privilege, then the party may do so. To clarify this point, the
Department added Sec. 106.45(b)(1)(x) to expressly state that a
recipient's grievance process must not: ``require, allow, rely upon, or
otherwise use questions or evidence that constitute, or seek disclosure
of, information protected under a legally recognized privilege, unless
the person holding such privilege has waived the privilege.''
Medical records may be subject to other Federal and State laws that
govern recipients, and recipients should comply with those laws. The
Department believes that the final regulations, and specifically Sec.
106.45(b)(5)(i), protect a party's records that are made or maintained
by a physician, psychiatrist, psychologist, or other recognized
professional or paraprofessional acting in the professional's or
paraprofessional's capacity, or assisting in that capacity, and which
are made and maintained in connection with the provision of treatment
to the party. Pursuant to Sec. 106.45(b)(5)(i), a recipient cannot
access, consider, disclose or otherwise use such records unless the
party gives the recipient voluntary, written consent.\1602\ This
restriction applies even where HIPAA or any State-law equivalent do not
apply.
---------------------------------------------------------------------------
\1602\ Pursuant to Sec. 106.45(b)(5)(i), if the party is not an
``eligible student,'' as defined in 34 CFR 99.3, then the recipient
must obtain the voluntary, written consent of a ``parent,'' as
defined in 34 CFR 99.3. Sec. 106.45(b)(5)(i).
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The Department does not wish to create more complexity and
confusion by creating yet another set of regulations that apply to
medical records by incorporating by reference HIPAA or attorney-client
privilege rules. These final regulations, and specifically Sec.
106.45(b)(1)(x) and Sec. 106.45(b)(5)(i), appropriately protect
medical records and attorney-client privileged information.
With respect to medical and counseling records to which a recipient
does not have access, whether a recipient may access such medical and
[[Page 30435]]
counseling records would be governed by other laws that typically
require a party's consent. A recipient should comply with all
applicable laws governing medical and counseling records. For purposes
of these final regulations, the recipient should not obtain as part of
an investigation any evidence, directly relating to the allegations in
a formal complaint, that cannot legally be shared with the parties.
Changes: The Department added Sec. 106.45(b)(1)(x) to expressly
state that a recipient's grievance process must not require, allow,
rely upon, or otherwise use questions or evidence that constitute, or
seek disclosure of, information protected under a legally recognized
privilege, unless the person holding such privilege has waived the
privilege.
Comments: Several commenters addressed the evidence-sharing
provisions of the grievance procedures in other ways, stating that the
final regulations ought to discourage schools from providing electronic
access to documents. Many noted that students generally live close to
the school itself, such that in-person access exclusively would likely
be adequate, and would prevent the documents from being shared with
outside parties or the press. Commenters also noted that electronic
access may pose difficulties for students who lack a computer, or who
lack internet access. Even for students who have access to these
technologies, reliable access may not always be easily obtainable. Some
might have to view evidence on a shared computer in a public library or
a computer lab.
Some commenters contended that some students with disabilities
would have difficulty accessing and reviewing all evidence in a digital
format, particularly given how much material is likely to be produced
under the final regulations. One commenter suggested limiting
production to hard copy documents, unless the parties all agree to
consent to electronic production as well. Some noted that hard copies
of evidence will have to be made in many cases anyway, since those
documents may need to be submitted as exhibits during the proceeding.
Some commenters suggested not even providing the parties with the
evidence, but instead just describing the evidence verbally, in the
hopes of encouraging dialogue and discourse.
Some commenters asserted that the final regulations should only
require supervised access to all material available to the decision-
makers. Other commenters disagreed with the idea of only providing
supervised hard-copy access to relevant documents, arguing that parties
need private access to the documents, to be able to discuss information
with their advisors. Some commenters asked the Department not to allow
schools to give documents directly to party advisors, asserting that a
party ought to have control over what they give to their own advisor.
Some commenters suggested that schools should have flexibility to
provide information in the way they see fit, accounting for the expense
of some technology. One commenter suggested that the final regulations
should eliminate language that dictates the manner in which records
will be shared, and instead state that the files should be shared ``in
a manner that will prevent either party from copying, saving, or
disseminating the records.''
Commenters contended that the time frames for providing evidence
are too short, and therefore unduly burdensome for schools. These
commenters argued that the ruling in Davis v. Monroe County Board of
Education, 526 U.S. 629 (1999), provides schools and school
administrators with flexibility and is not designed to make the process
rigid and one-size-fits-all.
Discussion: The Department disagrees that parties should only be
provided with hard copies of the evidence, as directly providing the
parties with a hard copy of the evidence will prevent a recipient from
being able to provide ``view only'' access, if the recipient would like
to provide ``view only'' access. The Department also does not wish to
require recipients to provide parties the opportunity only to inspect
and review hard copies of the evidence because the parties may have
obligations that prevent them from inspecting and reviewing the
evidence during the hours when the recipient's operations are open to
allow for such inspection and review. Nothing in these final
regulations prevents a recipient from providing a hard copy of the
evidence in addition to the evidence in an electronic format. Indeed,
the Department revised Sec. 106.45(b)(5)(vi)-(vii) to allow the
recipient to provide a party and the party's advisor of choice with
either a hard copy of the evidence and the investigative report or the
evidence and the investigative report in an electronic format. Allowing
the recipient to send the parties the evidence in an electronic format
gives the recipient sufficient discretion to determine whether to use a
file sharing platform that restricts the parties and advisors from
downloading or copying the evidence, and the recipient also may opt to
provide a hard copy of the evidence for the parties.\1603\ The
Department also fully encourages recipients to provide whatever
reasonable accommodations are necessary for students with disabilities;
recipients must comply with applicable disability laws while also
complying with these final regulations. The Department also reiterates
that a recipient may require parties to agree not to photograph or
otherwise copy the evidence that the recipient provides for inspection
and review. The Department also takes no position on nondisclosure
agreements that comply with these final regulations. The Department,
however, will not impose a uniform approach for recipients and would
like recipients to have discretion in this regard. A recipient may
choose to share records in a manner that will prevent either party from
copying, saving, or disseminating the records, but the Department will
not require the recipient to do so. Finally, the Department disagrees
that describing the evidence verbally will provide the parties with a
sufficient opportunity to respond to the evidence. Descriptions of
evidence may not be accurate and even the best description will not
always capture the nuances of the actual evidence.
---------------------------------------------------------------------------
\1603\ In response to many commenters concerned that requiring
recipients to provide the evidence to parties by using a digital
platform that restricts users from downloading the information would
be unnecessarily costly or burdensome, the final regulations revised
Sec. 106.45(b)(5)(vi) to remove that requirement.
---------------------------------------------------------------------------
The Department agrees with commenters that providing hard copy
access under and subject to the recipient's supervision may prevent the
parties from freely discussing the evidence with their advisors. If a
party does not want a recipient to provide a copy of the evidence or
investigative report to the party's advisor, then the recipient should
honor such a request. These final regulations simply prevent a
recipient from refusing to provide evidence or an investigative report
to a party's advisor, if the party would like the advisor to have
access to the evidence or investigative report.
Changes: The Department revised Sec. 106.45(b)(5)(vi)-(vii) to
allow a recipient to provide a hard copy of the evidence and
investigative report to the party and the party's advisor of choice or
to provide the evidence and investigative report in an electronic
format.
Comments: Several commenters had concerns about the grievance
proceeding itself, and how student privacy ought to be protected in
that context. Some contended that the proposed rules needed more
clarity as to
[[Page 30436]]
the content of the investigative report. The assumption by schools,
asserted the commenter, will be that facts, interview statements, a
credibility analysis, and the school's policy are the only components
of such a report, so any other items that ought to be included,
asserted the commenter, should be expressly mentioned.
Commenters asked whether, if there are multiple complainants and
one respondent, are the complainants entitled to the disciplinary
results for allegations related to other complainants' complaints?
Discussion: The Department does not wish to impose specific
requirements for the investigative report other than the requirement
that the investigative report must fairly summarize relevant evidence,
as described in Sec. 106.45(b)(5)(vii). A recipient may include facts
and interview statements in the investigative report. If a recipient
chooses to include a credibility analysis in its investigative report,
the recipient must be cautious not to violate Sec. 106.45(b)(7)(i),
prohibiting the decision-maker from being the same person as the Title
IX Coordinator or the investigator. Section 106.45(b)(7)(i) prevents an
investigator from actually making a determination regarding
responsibility. If an investigator's determination regarding
credibility is actually a determination regarding responsibility, then
Sec. 106.45(b)(7)(i) would prohibit it. Otherwise, the Department does
not wish to be overly prescriptive with respect to the contents of the
investigative report, and the recipient has discretion as to what to
include in it.
If there are multiple complainants and one respondent, then the
recipient may consolidate the formal complaints where the allegations
of sexual harassment arise out of the same facts or circumstances,
under Sec. 106.45(b)(4). The requirement for the same facts and
circumstances means that the multiple complainants' allegations are so
intertwined that their allegations directly relate to all the parties.
Accordingly, if the allegations of sexual harassment arise out of the
same facts or circumstances, the parties must receive the same written
determination regarding responsibility under Sec. 106.45(b)(7),
although the determination of responsibility may be different with
respect to each allegation depending on the facts. Section
106.45(b)(7)(iii) requires the recipient to provide the written
determination regarding responsibility to both parties simultaneously,
and a recipient may not redact or withhold any part of the written
determination regarding responsibility from the parties. If a recipient
consolidates formal complaints, a recipient must issue the same written
determination regarding responsibility to all parties because the
allegations of sexual harassment must arise out of the same facts or
circumstances such that the written determination directly relates to
all the parties. If a recipient does not consolidate the formal
complaints, then the recipient must issue a separate written
determination regarding responsibility for each formal complaint. If
the formal complaints are not consolidated, then each complainant would
receive the written determination regarding responsibility with respect
to that complainant's formal complaint.
Changes: None.
Comments: Some commenters were skeptical that the proposed rules
could adequately protect privacy, given work-arounds that allow parties
to share information easily. Other commenters suggested that the final
regulations should avoid specifying how information should be shared,
given how obsolete technology can quickly become. Another commenter
stated that the final regulations should require that a school provide
the parties only with a log of all documents--and not the documents
themselves--so that if certain documents in the log are protected by
FERPA, the parties can argue over whether the document is relevant or
not.
Discussion: The Department acknowledges that recipients have some
discretion to determine how privacy should best be protected while
fully complying with these final regulations. The Department permitted
but never required that a recipient use a file sharing platform that
restricts the parties and advisors from downloading or copying the
evidence in the proposed regulations. The Department is removing the
phrase ``such as a file sharing platform, that restricts the parties
and advisors from downloading or copying the evidence'' in Sec.
106.45(b)(5)(vi) to help alleviate any confusion that the proposed
regulations required such a platform.
The Department disagrees that a log of all documents in an
investigation will provide the parties with the same benefit as
inspecting and reviewing all evidence directly related to the
allegations in a formal complaint prior to the completion of an
investigative report. The purpose of this provision in Sec.
106.45(b)(5)(vi) is for parties to respond to the evidence prior to the
completion of the investigative report to help recipients provide a
fair and accurate investigative report. A log of documents will not
allow the parties to respond to the evidence, and the parties may not
always be able to determine whether a record is an education record and
whether FERPA prohibits the disclosure of personally identifiable
information contained in an education record merely by reviewing a log
of documents.
Changes: The Department removed the phrase ``such as a file sharing
platform, that restricts the parties and advisors from downloading or
copying the evidence'' in Sec. 106.45(b)(5)(vi).
Comments: Some commenters expressed concern that the proposed rules
would allow employees accused of sexual assault to review the private
medical records of the complainant, and that it would be strange for
staff members or employees of a school to have access to private
student records.
Discussion: As previously stated, the Department is bound by the
U.S. Constitution and must administer its final regulations in a manner
that would not require any person to be deprived of due process or
other constitutional rights. If an employee is a respondent, then the
employee must be able to respond to any evidence that directly relates
to the allegations in a formal complaint. With respect to medical
records, in order for the medical record to be used in the grievance
process, a complainant must either offer the recipient medical records
for such use, or provide voluntary, written consent for the recipient
to access and use the medical records.\1604\ In the written notice of
allegations required under Sec. 106.45(b)(2), a recipient will notify
the parties of the grievance process under Sec. 106.45, including the
requirement that both parties be able to review and inspect evidence
obtained as part of the investigation that is directly related to the
allegations raised in a formal complaint. If a complainant does not
wish for the respondent to inspect and review any medical record or any
part of any medical record that is directly related to the allegations,
then the complainant does not have to provide that medical record to
the recipient for use in the grievance process or provide consent for
the recipient to otherwise access or use that medical record.
---------------------------------------------------------------------------
\1604\ Sec. 106.45(b)(5)(i).
---------------------------------------------------------------------------
Changes: The final regulations revise Sec. 106.45(b)(5)(i) to
restrict a recipient from accessing, considering, disclosing, or
otherwise using a party's records that are made or maintained by a
physician, psychiatrist, psychologist, or other recognized professional
or paraprofessional acting in the
[[Page 30437]]
professional's or paraprofessional's capacity, or assisting in that
capacity, and which are made and maintained in connection with
provision of treatment to the party, unless the recipient obtains that
party's voluntary, written consent to do so for a grievance process
under Sec. 106.45(b). If the party is not an ``eligible student,'' as
defined in 34 CFR 99.3, then the recipient must obtain the voluntary,
written consent of a ``parent,'' as defined in 34 CFR 99.3.
Comments: Some commenters made more general suggestions for
modifying the proposed rule. One suggested that the final regulations
ought to clarify that FERPA does not require that hearings be closed
off to the press and to the public. The same commenter argued that in
fact all hearings needed to be open to the press and the public under
the First Amendment. One other commenter stated that the final
regulations ought to specify whether final adjudication determinations
can be publicized and published by either of the parties, or by the
school itself. One commenter suggested that the final regulations state
that it is not retaliation or a FERPA violation to contest or discuss
allegations or to criticize dishonest allegations of sexual harassment.
Discussion: The Department disagrees that hearings under Sec.
106.45(b)(6) must be open to the press and the public under the First
Amendment, as the First Amendment does not require that a hearing to
adjudicate allegations of sexual harassment in an education program or
activity of a recipient of Federal financial assistance be made open to
the public and the press. FERPA would preclude hearings to be open to
the press and the public if the hearings would require disclosure,
without prior written consent, of personally identifiable information
from an education record. FERPA and its implementing regulations may
govern whether the final adjudication determinations can be publicized
and published by a recipient to which FERPA applies, and these final
regulations do not address whether the final adjudication
determinations may be publicized or published other than providing the
written determination to the parties pursuant to Sec.
106.45(b)(7)(iii). Additionally, some recipients may have non-
disclosure agreements that comply with other laws, and these final
regulations neither require nor prohibit such non-disclosure
agreements. The final regulations provide that the recipient cannot
restrict the ability of either party to discuss the allegations under
investigation or to gather and present relevant evidence in Sec.
106.45(b)(5)(iii). To address the commenter's concerns, the final
regulations also provide that the exercise of rights protected under
the First Amendment does not constitute retaliation pursuant to Sec.
106.71. Threatening to publicize or make a written determination public
for the purpose of retaliation, however, is strictly prohibited under
Sec. 106.71 of these final regulations.
Changes: The Department included a retaliation provision in Sec.
106.71 that expressly states that the exercise of rights protected
under the First Amendment does not constitute retaliation.
Comments: Some commenters offered suggestions to improve the rule.
One suggested that police investigation files ought to also be made
available to the parties, in addition to student records. One commenter
argued that social media profiles and materials ought to be relevant to
any grievance proceeding as well, particularly for accusers who claim
trauma but then post contrary items on social media. Another commenter
argued that the Department should offer technical assistance to schools
to ensure that the platforms for sharing information are created
appropriately and that they work.
One commenter suggested that the final regulations ought to specify
that records created as part of the grievance process are themselves
protected by FERPA. Some commenters suggested that the final
regulations should require that grievance process records containing
personally identifiable information in them ought to be destroyed at
the conclusion of the grievance process. One commenter asked that the
Department clarify that schools have a right to redact documents, so
long as the redactions are not relevant to the proceeding and the
redactions are consistent with providing the parties due process. At
the very least, argued commenters, a school should be allowed to place
certain restrictions on students repeating information learned as part
of the evidentiary production or hearing process. In the same vein,
commenters asked that the Department state clearly that parties are not
entitled to evidence that is not relevant to a determination of
responsibility.
Commenters argued that the final regulations ought to include
meaningful consequences for parties who violate the confidentiality of
information. One suggested that the final regulations ought to include
some statement about retaliation, which is also covered under Title IX,
in terms of confidential documents.
One commenter suggested that the final regulations ought to include
meaningful consequences for schools that fail to implement privacy
safeguards. One stated that the final regulations ought to instruct
schools to follow the guidance issued by the Department in the Letter
to Wachter (signed by Michael Hawes).\1605\
---------------------------------------------------------------------------
\1605\ See Letter from Michael Hawes, Director of Student
Privacy Policy, U.S. Dep't. of Education, Off. of Mgmt., to Timothy
S. Wachter, Knox McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017),
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/Letter%20to%20Wachter%20%28Surveillance%20Video%20of%20Multiple%20Students%29_0.pdf.
---------------------------------------------------------------------------
Discussion: These final regulations do not prevent a recipient from
making police investigation files available to the parties. If a
recipient obtains police investigation files as part of its
investigation of a formal complaint under Sec. 106.45(b)(5) and some
of the evidence in the police investigation files is directly related
to the allegations raised in a formal complaint as described in Sec.
106.45(b)(5)(vi), then the recipient must provide that evidence to the
parties for their inspection and review. A recipient may use social
media profiles, assuming that these social media profiles are lawfully
obtained, as part of the investigation. The Department will continue to
provide recipients with technical assistance and as previously
explained, does not require recipients to use a specific platform for
sharing information.
Whether FERPA applies to records that are part of a Sec. 106.45
grievance process depends on the circumstances. For example, education
records under FERPA may not be implicated at all in a formal complaint
of sexual harassment by a non-student complainant against a non-student
respondent. The requirement to destroy records with personally
identifiable information at the conclusion of the grievance process
violates the record-keeping requirements in these final regulations.
Such a requirement also may violate record-keeping requirements under
the Clery Act, which provides for a seven-year retention period for
sexual assault, dating violence, domestic violence, and stalking.\1606\
---------------------------------------------------------------------------
\1606\ 34 CFR 668.24(e)(2)(ii); see U.S. Dep't. of Education,
Office of Postsecondary Education, The Handbook for Campus Safety
and Security Reporting 9-11 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
---------------------------------------------------------------------------
As previously explained, these final regulations do not require a
recipient to share any information in records obtained as part of an
investigation that is not directly related to the allegations in a
formal complaint, and FERPA may
[[Page 30438]]
even require redaction of such information. The Department disagrees
with the statement that parties are not entitled to evidence that is
not relevant to a determination of responsibility. The parties must
receive all evidence obtained as part of an investigation that is
directly relevant to the allegations in a formal complaint. Such
evidence may not always be directly relevant to a determination
regarding responsibility. The purpose of these final regulations is to
provide both parties with the opportunity to respond to any evidence
that directly relates to the allegations in a formal complaint, which
is why the parties should have the opportunity to inspect and review
such evidence prior to the hearing or prior to when a determination
regarding responsibility is made if no hearing is required.
A recipient may require restrictions or use a non-disclosure
agreement for confidential information as long as doing so does not
violate these final regulations or other applicable laws. These final
regulations do not address confidential information or how to safeguard
confidential information because the Department cannot begin to
identify what the universe of confidential information or records may
constitute. A recipient is better able to identify what constitutes
confidential records and how these records should be protected in a
manner that complies with these final regulations. The Department
includes a retaliation provision in Sec. 106.71, but this provision
does not specifically address confidential documents. Nonetheless, if
confidential documents are used for retaliation as defined in Sec.
106.71, then these final regulations would prohibit such retaliation.
The Department notes that the Department's Letter to Wachter
(signed by Michael Hawes),\1607\ may be helpful to recipients in
determining how to comply with the regulations implementing FERPA.
---------------------------------------------------------------------------
\1607\ See Letter from Michael Hawes, Director of Student
Privacy Policy, U.S. Dep't. of Education, Off. of Mgmt., to Timothy
S. Wachter, Knox McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017),
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/Letter%20to%20Wachter%20%28Surveillance%20Video%20of%20Multiple%20Students%29_0.pdf.
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters argued that parties ought to have access
to all evidence--not just evidence that the school deems relevant--that
is gathered during the course of investigating a formal complaint.
Commenters argued that schools cannot be trusted to appropriately
review and determine which evidence is ``directly relevant,'' as
opposed to merely ``relevant'' or ``irrelevant.'' Commenters contended
that schools would under-produce evidence that might be directly
relevant, out of a bias toward finding a respondent to be responsible
for sexual harassment. The commenters argued that schools like it when
respondents are found responsible, since that will facilitate their
efforts of showing that they are complying with Title IX. One commenter
suggested that any evidence not produced to a party be logged, such
that the parties have sufficient information to dispute the
characterization as not directly relevant.
Discussion: The Department requires the recipient to provide the
parties an equal opportunity to inspect and review any evidence
obtained as part of an investigation that is directly related to
allegations raised in a formal complaint, including the evidence upon
which the recipient does not intend to rely in reaching a determination
regarding responsibility and inculpatory or exculpatory evidence
whether obtained from a party or other source under Sec.
106.45(b)(vi). Even though a recipient has some discretion as to what
evidence is directly related to allegations raised in a formal
complaint, the Department may determine that a recipient violated Sec.
106.45(b)(vi) if a recipient does not provide evidence that is directly
related to allegations raised in a formal complaint to the parties for
review and inspection. A recipient may choose to log information that
it does not produce and allow the parties to dispute whether the
information is directly related to the allegations. Although the
Department does not impose a requirement to produce such a log during
an investigation under Sec. 106.45, recipients are welcome to do so
and may use such a log to demonstrate that both parties agreed certain
evidence is not directly related to the allegations raised in a formal
complaint.
Changes: None.
Comment: One commenter asked how the recordkeeping requirement in
Sec. 106.45(b)(10) complies with FERPA. On the issue of records
retention, one commenter suggested that seven years was slightly
different than FERPA, stating that FERPA contemplated a range of five
to seven years.
Discussion: The recordkeeping requirement in Sec. 106.45(b)(10)
does not conflict with FERPA. FERPA and its implementing regulations do
not require recipients of Federal financial assistance to keep records
for a specific amount of time. FERPA's implementing regulations only
require that an educational agency or institution not destroy any
education records if there is an outstanding request to inspect and
review the records.\1608\ Accordingly, the seven-year retention period
that the Department adopts in Sec. 106.45(b)(10) does not in any way
impact a recipient's obligations under FERPA.
---------------------------------------------------------------------------
\1608\ 34 CFR 99.10(e) (``The educational agency or institution,
or SEA or its component shall not destroy any education records if
there is an outstanding request to inspect and review the records
under this section.'').
---------------------------------------------------------------------------
Changes: None.
Section 106.6(f) Title VII and Directed Question 3 (Application to
Employees)
Comments: A few commenters expressed support for applying the
proposed rules to employees because it would ensure fairness and help
to safeguard a level playing field.
Several commenters expressed general opposition to the NPRM itself
but asserted that Title IX should apply to employees because it is
necessary for student safety. Commenters stated that no unique
circumstances justify treating students and faculty differently under
Title IX. One commenter emphasized that employees in the workplace who
are accused of sexual harassment may face life-altering consequences.
This commenter asserted that recipients may have perverse incentives,
due to pressure from media and the general public in the current #MeToo
environment, not to provide adequate due process absent a government
mandate. The commenter asserted that the NPRM's due process
protections, including a clear definition of sexual harassment, with
adequate notice and opportunity for a live hearing with cross-
examination, also should extend to employees. The commenter also
identified a risk that campus administrators may selectively promote or
ignore certain Title IX claims to help or undermine the careers of
certain faculty. And the commenter described a risk that a complainant
faculty with seniority could coerce witnesses to provide favorable
testimony.
One commenter asserted that the Department enforces Title VII,
while other commenters concluded that the Department does not have
authority to regulate complaints that do not involve students at all,
such as employee-on-employee cases. Commenters urged the Department to
explicitly state that the final regulations, including the adjudication
processes contained therein, only apply to ``students.'' These
commenters reasoned that Congress did not intend Title IX's protections
for equal access to education to apply to employees, because employees
do not receive education. According to these commenters, the Department
lacks
[[Page 30439]]
jurisdiction to regulate how recipients handle employee-related
matters. One commenter requested that the Department supplement the
final regulations with a clarification of the relationship between
claims that contain the potential to be adjudicated under either, or
both, Title VII and Title IX.
Another commenter requested further explanation of the intersection
of Title VII and Title IX in the context of the respondent being a
student-employee on campus.
One commenter stated that the location of the definition of
``formal complaint'' and the procedures themselves (Sec. 106.45) were
located in Subpart D of the NPRM, which implied that they do not apply
to employee complaints alleging sexual harassment in employment. The
commenter asserted that it is unclear if recipients are expected to
handle employee complaints under Sec. 106.8 instead, which would
require two different processes with different definitions of sexual
harassment, and inquired as to how complaints by student-employees
should be handled.
Several commenters opposed the written notice requirements in Sec.
106.45(b)(5)(v) because they believe the provision is unclear as to how
it will apply to a recipient's employees.
Several commenters noted that the deliberate indifference standard
is lower than the standard imposed on employers under Title VII and/or
the standard articulated by the 2001 guidance. One commenter asserted
that the obligation to dismiss the formal complaint with respect to
conduct that does not constitute sexual harassment as defined in Sec.
106.30 or that did not occur within the recipient's program or activity
undercuts an employer's ability to take proactive steps to investigate
and sanction unwelcome conduct of a sexual nature before it becomes
sexual harassment as defined in the proposed Title IX regulations or
sexual harassment prohibited under the Title VII standard.
One commenter argued that the Department should avoid taking a
position on whether Title IX applies to employees. This commenter
reasoned that the Department should limit this rulemaking to student-
complainant cases because of a split among Federal circuit courts
regarding whether Title VII provides the exclusive remedy for employee
discrimination claims. Similarly, other commenters noted that because
some Federal courts have held Title VII preempts Title IX regarding
employment claims, extending the proposed rules in this context may be
ineffective. Similarly, another commenter urged the Department to
clarify that Sec. 106.6(f) is not intended to create a new Title IX
private right of action for employees.
Discussion: The Department appreciates support for its final
regulations, which apply to employees. Congress did not limit the
application of Title IX to students. 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 . . . .'' Title IX,
thus, applies to any person in the United States who experiences
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance. Similarly, these final
regulations, which address sexual harassment, apply to any person,
including employees, in an education program or activity receiving
Federal financial assistance.
The Department also notes that Title VII is not limited to
employees and may apply to individuals other than employees. Title VII
prohibits ``unlawful employment practices'' against ``an individual''
by employers, labor unions, employment agencies, joint-labor management
committees, apprenticeship programs and, thus, protects individuals
other than employees such as job and apprenticeship applicants.\1609\
As Title VII protects more than just employee's rights, the Department
revises Sec. 106.6(f) to state that nothing in Part 106 of Title 34 of
the Code of Federal Regulations may be read in derogation of any
individual's rights rather than just any employee's rights under Title
VII. The Department recognizes that employers must fulfill their
obligations under Title VII and also under Title IX. There is no
inherent conflict between Title VII and Title IX, and the Department
will construe Title IX and its implementing regulations in a manner to
avoid an actual conflict between an employer's obligations under Title
VII and Title IX.
---------------------------------------------------------------------------
\1609\ 42 U.S.C. 2000e-(a)-(d).
---------------------------------------------------------------------------
The Department agrees that students and employees, including
faculty and student workers, should not be treated differently under
its final regulations.\1610\ Employees should receive the same benefits
and due process protections that students receive under these final
regulations, and these final regulations, including the due process
protections in Sec. 106.45, apply to employees. The Department notes
that its 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. 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.' ''\1611\
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\1610\ As discussed in the ``Section 106.44(d) Administrative
Leave'' subsection of the ``Additional Rules Governing Recipients'
Responses to Sexual Harassment'' section of this preamble, the
exception in the final regulations under which employees are treated
differently from students, is that a ``non-student employee'' may be
placed on administrative leave during the pendency of a grievance
process that complies with Sec. 106.45.
\1611\ Cannon v. Univ. of Chicago, 441 U.S. 677, 708 fn. 42
(1979).
---------------------------------------------------------------------------
The split among Federal courts relates to whether an implied
private right of action exists for damages under Title IX for
redressing employment discrimination by employers.\1612\ These Federal
cases focus on whether Congress intended for Title VII to provide the
exclusive judicial remedy for claims of employment
discrimination.\1613\ Courts have not precluded the Department from
administratively enforcing Title IX with respect to employees. The
Supreme Court also expressly recognized the application of Title IX to
redress employee-on-student sexual harassment in Gebser.\1614\
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\1612\ See Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3d
Cir. 2017); Lakosi v. James, 66 F.3d 751, 755 (5th Cir. 1995);
Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y.
1998); Cooper v. Gustavus Adolphus Coll., 957 F. Supp. 191, 193 (D.
Minn. 1997); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97
(D.R.I. 1997); Torres v. Sch. Dist. of Manatee Cnty., Fla., No.
8:14-CV-1021-33TBM, 2014 WL 418364 at *6 (M.D. Fla. Aug. 22, 2014);
Winter v. Pa. State Univ., 172 F. Supp. 3d 756, 774 (M.D. Pa. 2016);
Uyai v. Seli, No. 3:16-CV-186, 2017 WL 886934 at *6 (D. Conn. Mar.
6, 2017); Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1120
(D. Kan. 2017).
\1613\ See id.
\1614\ Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 277
(1998).
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The Department's longstanding position is that its Office for Civil
Rights (OCR) addresses, under Title IX, sex discrimination in the form
of sexual harassment, including by or against employees. For example,
the Department's 2001 Guidance specifically addressed the sexual
harassment of students by school employees.\1615\ The Department also
has enforced its Title IX regulations, including regulations
interpreted to address sexual harassment, as to employees.\1616\
---------------------------------------------------------------------------
\1615\ 2001 Guidance at iv-v, 3, 5, 8-12.
\1616\ See, e.g., U.S. Dep't. of Education, Office for Civil
Rights, Resolution Letter to Univ. of Va. 18-20 (Sept. 21, 2015),
https://www2.ed.gov/documents/press-releases/university-virginia-letter.pdf; U.S. Dep't. of Education, Office for Civil Rights, Title
IX Resolution Letter to Yale Univ. 3 (June 15, 2012) (``The Title IX
regulation, at 34 CFR Section 106.8(a), specifically requires that
each recipient designate at least one employee to coordinate its
responsibilities to comply with and carry out its responsibilities
under Title IX, including any investigation of any complaint
communicated to it alleging noncompliance with Title IX (including
allegations that the recipient failed to respond adequately to
sexual harassment). This provision further requires that the
recipient notify all its students and employees of the name (or
title), email and office address and telephone number of the
employee(s) so designated.'') (emphasis added), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/01112027-a.pdf.
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[[Page 30440]]
Contrary to the commenter's assertion, the Department does not have
the authority to create a Title IX private right of action for
employees through these final regulations. The Department has the
authority to administratively enforce Title IX. Accordingly, these
final regulations do not need to expressly state that the Department is
not intending to create a new Title IX private right of action for
employees. The commenter accurately notes that the definition of
``formal complaint'' and the grievance process for a formal complaint
are in 34 CFR part 106, subpart D, which addresses sex discrimination
on the basis of sex in education programs and activities, and not
subpart E, which addresses discrimination on the basis of sex in
employment in education programs and activities. Subpart D applies to
all sex discrimination on the basis of sex and not just sex
discrimination on the basis of sex with respect to students. Subpart D
is the only subpart that directly addresses sexual harassment through
these final regulations. The Department expressly states in Sec.
106.51(b) that subpart E applies to recruitment, advertising, and the
process of application for employment, the rate of pay or any other
form of compensation, and change in compensation, and other matters
that specifically concern employment, but subpart E does not apply to
allegations of sexual harassment by or against an employee. Only
subpart D addresses sexual harassment, and these final regulations in
subpart D apply to any person who experiences sex discrimination in the
form of sexual harassment in an education program or activity of a
recipient of Federal financial assistance. To help clarify these
points, the Department has revised the final regulations so that the
definitions in Sec. 106.30 apply to the entirety of 34 CFR part 106
and not just to subpart D of 34 CFR part 106.\1617\ Accordingly,
recipients are expected to handle any formal complaints of sexual
harassment in an education program or activity against a person in the
United States through the grievance process in Sec. 106.45. The
grievance process in Sec. 106.45 applies irrespective of whether the
complainant or respondent is a student or employee. The Department is
aware that Title VII imposes different obligations with respect to
sexual harassment, including a different definition, and recipients
that are subject to both Title VII and Title IX will need to comply
with both sets of obligations. Nothing in these final regulations,
however, shall be read in derogation of an individual's rights,
including an employee's rights, under Title VII, as expressly stated in
Sec. 106.6(f). Similarly, nothing in these final regulations precludes
an employer from complying with Title VII. The Department recognizes
that employers must fulfill both their obligations under Title VII and
Title IX, and there is no inherent conflict between Title VII and Title
IX.
---------------------------------------------------------------------------
\1617\ Consistent with these clarifications regarding the
coverage of sexual harassment under subpart D, including with
respect to employees, we also revised Sec. 106.44(d) (authorizing a
recipient to place a non-student employee on administrative leave
during the pendency of a Sec. 106.45 grievance process) to state
that nothing in subpart D precludes administrative leave, instead of
stating that nothing in Sec. 106.44 precludes administrative leave.
---------------------------------------------------------------------------
The Department does not share the commenter's concerns about the
application of Sec. 106.45(b)(5)(v) to a recipient's employees.
Section 106.45(b)(5)(v) requires a recipient to provide to the party
whose participation is invited or expected written notice of the date,
time, location, participants, and purpose of all hearings,
investigative interviews, or other meetings with a party, with
sufficient time for the party to prepare to participate. Employees that
go through the grievance process described in Sec. 106.45 deserve the
same written notice as other individuals who go through this grievance
process. Nothing precludes the recipient from providing such written
notice to its employees.
The Department acknowledges that the final regulations deviate from
the standard articulated in its 2001 Guidance, by which recipients must
respond to allegations of sexual harassment. We explain the rationale
for our departure from prior policy positions earlier in this preamble
in the section on ``Adoption and Adaption of the Supreme Court's
Framework to Address Sexual Harassment.'' Additionally, the Department
acknowledges that the standard for responding to sexual harassment
under Title VII is different than the standard under Title IX. The
deliberate indifference standard in Sec. 106.44(a) is the most
appropriate standard under Title IX as recipients are in the business
of education where people are engaged in a marketplace of ideas that
may challenge their own. To avoid restrictions on the speech, conduct,
and other expressive activity that helps provide a robust education for
students and academic freedom for faculty and staff, the Department
adopts the standard that the Supreme Court articulated for Title IX
cases rather than the standard that the Supreme Court has articulated
for Title VII or other statutory schemes.
With respect to Sec. 106.45(b)(3)(i), which requires mandatory
dismissal in certain circumstances, the Department has revised this
provision to clarify that such a dismissal does not preclude action
under a non-Title IX provision of the recipient's code of
conduct.\1618\ If a recipient has a code of conduct for employees that
goes beyond what Title IX and these final regulations require (for
instance, by prohibiting misconduct that does not meet the definition
of ``sexual harassment'' under Sec. 106.30, or by prohibiting
misconduct that occurred outside the United States), then a recipient
may enforce its code of conduct even if the recipient must dismiss a
formal complaint (or allegations therein) for Title IX purposes. These
regulations do not preclude a recipient from enforcing a code of
conduct that is separate and apart from what Title IX requires, such as
a code of conduct that may address what Title VII requires.
Accordingly, recipients may proactively address conduct prohibited
under Title VII, when the conduct does not meet the definition of
sexual harassment in Sec. 106.30, under the recipient's own code of
conduct, as these final regulations apply only to sexual harassment as
defined in Sec. 106.30.
---------------------------------------------------------------------------
\1618\ Sec. 106.45(b)(3)(i) (providing that the ``recipient
must investigate the allegations in a formal complaint. If the
conduct alleged by the complainant would not constitute sexual
harassment as defined in Sec. 106.30 even if proved, did not occur
in the recipient's education program or activity, or did not occur
against a person in the United States, then the recipient must
dismiss the formal complaint with regard to that conduct for
purposes of Title IX but ``such a dismissal does not preclude action
under another provision of the recipient's code of conduct.'').
---------------------------------------------------------------------------
Campus administrators will not be able to ignore or promote certain
reports of sexual harassment to help or undermine the careers of
certain faculty. These final regulations apply to all reports of sexual
harassment, and a recipient cannot ignore or promote certain reports.
In response to these and
[[Page 30441]]
other comments, the Department has added a provision to expressly
prohibit retaliation in Sec. 106.71. Under Sec. 106.71, a faculty
member with seniority could not coerce witnesses to provide favorable
testimony. No recipient or other person may intimidate, threaten,
coerce, or discriminate against any individual for the purpose of
interfering with any right or privilege secured by Title IX or this
part.
Contrary to the commenter's assertion, the Department does not have
authority to enforce, implement, or administer Title VII. While we
appreciate the commenter's interest in supplementing the final
regulations to clarify the relationship between Title VII and Title IX,
we decline to include such an explanation at this time. As previously
stated, there is no inherent conflict between Title VII and Title IX,
and the Department will construe Title IX and its implementing
regulations, including these final regulations, in a manner to avoid an
actual conflict between an employer's obligations under Title VII and
Title IX.
Changes: The Department revises Sec. 106.6(f) to state that
nothing in 34 CFR part 106 may be read in derogation of any
individual's rights under Title VII. The Department has added Sec.
106.71 to expressly prohibit retaliation. Additionally, the Department
has revised Sec. 106.30 to clarify that aside from the definitions of
``elementary and secondary school'' and ``postsecondary institution,''
the definitions in Sec. 106.30 apply to all of 34 CFR part 106 and not
just to subpart D of part 106.\1619\ For similar clarity we have
revised Sec. 106.44(d) to refer to subpart D of 34 CFR part 106 rather
than solely to Sec. 106.44. With respect to a mandatory dismissal
under Sec. 106.45(b)(3)(i), the Department has revised this provision
to clarify that such a dismissal is only for Title IX purposes and does
not preclude action under another provision of the recipient's code of
conduct.
---------------------------------------------------------------------------
\1619\ The NPRM proposed that the definitions in Sec. 106.30
apply only to Subpart D, Part 106 of Title 34 of the Code of Federal
Regulations. 83 FR 61496. Aside from the words ``elementary and
secondary school'' and ``postsecondary institution,'' the words that
are defined in Sec. 106.30 do not appear elsewhere in Part 106 of
Title 34 of the Code of Federal Regulations. Upon further
consideration and for the reasons articulated in this preamble, the
Department would like the definitions in Sec. 106.30 to apply to
Part 106 of Title 34 of the Code of Federal Regulations, except for
the definitions of the words ``elementary and secondary school'' and
``postsecondary institution.'' The definitions of the words
``elementary and secondary school'' and ``postsecondary
institution'' in Sec. 106.30 will apply only to Sec. Sec. 106.44
and 106.45. This revision is not a substantive revision because this
revision does not change the definitions or meaning of existing
words in Part 106 of Title 34 of the Code of Federal Regulations.
Ensuring that the definitions in Sec. 106.30 apply throughout Part
106 of Title 34 of the Code of Federal Regulations will provide
clarity and consistency for future application. We also have
clarified in Sec. 106.81 that the definitions in Sec. 106.30 do
not apply to 34 CFR 100.6-100.11 and 34 CFR part 101, which are
procedural provisions applicable to Title VI. Section 106.81
incorporates these procedural provisions by reference into Part 106
of Title 34 of the Code of Federal Regulations.
---------------------------------------------------------------------------
Comments: Another commenter urged the Department to explicitly
require that all of a recipient's employees be aware of the possibly
criminal nature of employee-on-student sexual misconduct under State
laws and to comply with State mandatory reporting requirements. One
commenter stated that elementary and secondary school recipients must
ensure that if a student discloses information about sexual misconduct
by another student or employee, that all employees must report the
information to the Title IX Coordinator.
Discussion: The Department encourages all recipients to comply with
all laws applicable to the recipient. The Department, however, does not
have the authority to enforce or administer State laws or State
mandatory reporting requirements. Additionally, it would be a huge
burden for the Department to keep track of all the possibly criminal
nature of employee-on-student sexual misconduct under State laws and
State mandatory reporting requirements to make certain that recipients
are aware of such State law requirements or are complying with such
requirements.
The Department agrees with the commenter's sentiment that any
employee in the elementary and secondary context should be responsible
for instituting corrective measures on behalf of the recipient if these
employees have notice of sexual harassment or allegations of sexual
harassment, and the Department has revised the definition of ``actual
knowledge'' in Sec. 106.30 to include notice to all employees of an
elementary or secondary school. Although an elementary or secondary
school may require employees to report the information to the Title IX
Coordinator, a student's report of sexual harassment or notice of
sexual harassment or allegations of sexual harassment to any employee
of the elementary or secondary school is sufficient to hold the school
district liable for a proper response under these final regulations.
Changes: The Department has revised the definition of actual
knowledge in Sec. 106.30 to include notice of sexual harassment to any
employee in the elementary or secondary school context.
Comments: Some commenters proposed that the Department apply the
proposed rules to employees but with some modifications. Commenters
asserted that overzealous Title IX enforcement and a broad conception
of ``harassment'' has undermined faculty rights, free speech, and
academic inquiry. One commenter requested that the Department not adopt
the student-on-student harassment definition for faculty, but to
instead adopt a ``severe or pervasive'' standard for the employment
context. This commenter also suggested that the final regulations
clearly state they do not preclude recipients' obligation to honor
additional rights negotiated by faculty in any collective bargaining
agreement or employment contract. Another commenter contended that,
unlike employees, students can be protected during an investigation by
a no-contact order. But employees presumably have ongoing relationships
with other community members and are likely to continue working
together throughout the investigation period. The commenter expressed
concern that employees may risk their jobs by acting as a complainant
or witness.
Discussion: As explained above, the Department's final regulations
apply to employees, and the Department cannot discern any meaningful
justification to treat employees, including faculty, differently than
students with respect to allegations of sexual harassment. The
Department believes that students and employees should have the same
protections with respect to regulations addressing sexual harassment.
The Department notes that employees, including faculty, sometimes
sexually harass students. It would be difficult to reconcile how
regulations would apply to employee-on-student sexual harassment, if
the Department had a different set of regulations that apply to
employees than to students such that a student-complainant's rights
depended on the identity of the respondent as a student or employee.
The Department does not wish to adopt a ``severe or pervasive''
standard for the reasons explained throughout this preamble, including
in the ``Definition of Sexual Harassment'' subsection of the ``Adoption
and Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section, and these reasons include guarding against the
infringement of First Amendment freedoms such as academic freedom. The
Department recognizes that other laws such as Title VII may have a
different standard and impose different requirements. There is no
inherent conflict between Title VII and Title IX, and employers may
comply with the requirements under both Title VII and Title IX.
[[Page 30442]]
These final regulations do not preclude a recipients' obligation to
honor additional rights negotiated by faculty in any collective
bargaining agreement or employment contract, and such contracts must
comply with these final regulations. In the Department's 2001 Guidance,
and specifically in the context of the due process rights of the
accused, the Department recognized that ``additional or separate rights
may be created for employees . . . by . . . institutional regulations
and policies, such as faculty or student handbooks, and collective
bargaining agreements.''\1620\ The Department has never impeded a
recipient's ability to provide parties with additional rights as long
as the recipient fulfils its obligations under Title IX. The Department
has never suggested otherwise, and we believe it is unnecessary to
expressly address this concern in the regulatory text. Although
recipients may give employees additional or separate rights, recipients
must still comply with these final regulations, which implement Title
IX.
---------------------------------------------------------------------------
\1620\ 2001 Guidance at 22.
---------------------------------------------------------------------------
A recipient may provide a mutual restriction on contact between the
parties, including when an employee is a party, under the final
regulations. The final regulations do not restrict the availability of
supportive measures, as defined in Sec. 106.30, to only students.
Rather, supportive measures are available to any complainant or
respondent, including employee-complainants and employee-respondents.
In response to commenters' concerns, the Department has added a
provision to expressly prohibit retaliation in Sec. 106.71. Under
Sec. 106.71, no recipient or other person may intimidate, threaten,
coerce, or discriminate against any individual for the purpose of
interfering with any right or privilege secured by Title IX or this
part, or because the individual has made a report or complaint,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this part. The Department will not
tolerate retaliation against anyone, including an employee who is a
complainant or a witness.
Changes: The Department has added a provision to Sec. 106.71 to
expressly prohibit retaliation.
Comments: Many commenters argued that application of the proposed
rules to employees is problematic because it would conflict with
Federal law and congressional intent. Commenters noted that Title VII
already prohibits sex discrimination, including sexual harassment, in
the employment context, and that other Federal laws prohibit harassment
based on other protected characteristics such as race, age, and
disability in the employment context. Commenters contended that it
would be illogical for the Department to establish protections for
respondents accused of sexual harassment that do not exist for
respondents accused of race, age, or disability discrimination. A few
commenters proposed that the final regulations explicitly state that
they apply only to allegations involving student-respondents, and that
sexual allegations against employees are governed by Title VII and
State and local non-discrimination in employment laws. Similarly,
another commenter asked that the final regulations explicitly state
that Title VII and similar State and local laws apply where the
respondent is an employee, and that Title IX does not require any
process in such cases. Some commenters also expressed concern that if
the proposed rules apply in the employment context, then recipients
would face the impossible situation of having to comply with
contradictory Title IX and Title VII standards. Commenters described
specific conflicting elements of Title IX and Title VII, including the
NPRM's formal complaint requirement, notice requirement, deliberate
indifference standard, sexual harassment definition, and the live
hearing requirement. Commenters argued these Title IX provisions, which
they alleged conflict with Title VII, are less protective than Title
VII, and that the Department should not provide less protection to
children in school than adults in the workplace. Some commenters also
suggested that conflicts between Title IX and Title VII may create
confusion and expose recipients to liability. One commenter asserted
that the Department should proceed carefully when affecting a
recipient's personnel decisions because Congress expressed concern
about the potential for Federal overreach when creating the Department
in 1979 and included a clear statutory prohibition that the Department
may not exercise direction, supervision, or control over any
recipient's administration or personnel.
Some commenters expressed confusion about the applicability of the
proposed grievance process provisions (specifically, Sec. 106.45) to
employees and asked the Department to clarify the scope of the
grievance procedure requirements with respect to employees. These
commenters argued that applying the grievance process required under
the final regulations to complaints against all faculty and staff would
be an expansion of Title VII and is outside of the Department's
jurisdiction. They also noted that employers already have well-
established policies and procedures informed by decades of Title VII
jurisprudence which drive their responses to allegations of sexual
harassment and differ greatly from the requirements in Sec. 106.45.
Discussion: The Department disagrees that applying these final
regulations to employees conflicts with Federal law and congressional
intent. Congress enacted both Title VII and Title IX to address
different types of discrimination. 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 in the workplace. As commenters also
acknowledge, the Supreme Court in interpreting Title IX and Title VII
has held that different definitions of and standards for addressing
sexual harassment apply under Title IX than under Title VII. Although
there may be some overlap between Title VII and Title IX, it is not
illogical for the Department to establish protections for parties who
are reporting sexual harassment or defending against allegations of
sexual harassment that are not the same as for parties who are dealing
with race, age, or disability discrimination because Title IX, unlike
Title VII, solely concerns sex discrimination in an education program
or activity that receives Federal financial assistance. Allegations of
sexual harassment may implicate a person's reputation, for example, in
ways that allegations of race, age, or disability discrimination may
not, even though all of these types of discrimination are prohibited.
For instance, false statements about a person's sexual activity may be
actionable as defamation per se.\1621\
---------------------------------------------------------------------------
\1621\ E.g., Rose v. Dowd, 265 F. Supp. 3d 525, 541 (E.D. Pa.
2017) (noting that statements imputing serious sexual misconduct
constitute defamation per se under multiple State laws).
---------------------------------------------------------------------------
The Department acknowledges that Title VII and Title IX impose
different requirements and that some recipients will need to comply
with both Title VII and Title IX. Although recipients have noted that
Title VII and Title IX have different standards for sexual harassment,
recipients have not explained why they cannot comply with both
standards. The Department's view is that there is no inherent conflict
between Title VII and Title IX, including these final regulations. For
[[Page 30443]]
example, Title VII defines sexual harassment as severe or pervasive
conduct, while Title IX defines sexual harassment as severe and
pervasive conduct. Nothing in these final regulations precludes a
recipient-employer from addressing conduct that it is severe or
pervasive, and Sec. 106.45(b)(3)(i) provides that a mandatory
dismissal under these final regulations does not preclude action under
another provision of the recipient's code of conduct. Thus, a
recipient-employer may address conduct that is severe or pervasive
under a code of conduct for employees to satisfy its Title VII
obligations. Courts impose different requirements under Title VII and
Title IX, and recipients comply with case law that interprets Title VII
and Title IX differently. Similarly, recipients may comply with
different regulations implementing Title VII and Title IX. For example,
nothing in Title VII precludes an employer from allowing employees to
file formal complaints or from providing notice to an employee such as
notice of the allegations against the employee or notice of the
dismissal of any allegations as required in these final regulations.
These final regulations require all recipients with actual knowledge of
sexual harassment in an education program or activity of the recipient
against a person in the United States, to respond promptly in a manner
that is not deliberately indifferent, irrespective of whether the
complainant and respondent are students or employees.
The Department is not exercising direction, supervision, or control
over any recipient's administration or personnel. Indeed, Sec.
106.44(b)(2) specifically states that the Assistant Secretary will not
deem a recipient's determination regarding responsibility to be
evidence of deliberate indifference by the recipient, or otherwise
evidence of discrimination under Title IX by the recipient, solely
because the Assistant Secretary would have reached a different
determination based on an independent weighing of the evidence.
Accordingly, the Department will not dictate what the recipient's
determination regarding responsibility should be for a respondent who
is an employee. Similarly, the Department will not require a recipient
to impose a specific type of disciplinary sanction on a respondent who
is an employee. The Department only requires a recipient to describe
the range of possible disciplinary sanctions in Sec. 106.45(b)(1)(vi)
and does not otherwise require a recipient to include specific
disciplinary sanctions.
The Department acknowledges that the grievance process in Sec.
106.45 may apply to employees and disagrees that applying such a
grievance process to employees is an expansion of Title VII. The
grievance process in Sec. 106.45 does not contradict Title VII or its
implementing regulations in any manner and at most may provide more
process than Title VII requires. These final regulations, however, do
not expand Title VII, as these final regulations are promulgated under
Title IX. As previously explained, Title IX prohibits discrimination on
the basis of sex in a recipient's education program or activity against
a person in the United States. Title IX and these implementing
regulations do not necessarily apply in all circumstances, and there
may be circumstances in which Title VII but not Title IX applies. For
example, if the alleged sexual harassment did not occur in an education
program or activity of the recipient, then Title IX and these final
regulations would not apply.
Changes: None.
Comments: A handful of commenters argued that application of the
proposed rules to employees is problematic because it would conflict
with State laws, collective bargaining agreements, and other employee
contracts. Commenters asserted several State employment statutes and
local policies covering issues including the definition of sexual
harassment, retaliation, complaint processes, discovery and cross-
examination, and other related matters that may conflict with the
proposed standards and grievance procedures.
Commenters also noted the proposed rules would conflict with many
collective bargaining agreements covering unionized employee groups
that cover matters such as employee pay, working conditions, and
disciplinary processes such as the applicable standard of evidence.
Application of the NPRM to these employee groups, they contended, could
violate existing multi-year agreements, undermine parties'
expectations, and would likely require recipients to undergo a lengthy
and complex renegotiation of union contracts. Commenters expressed
concern about Federal intrusion on freedom of contract. One commenter
argued that a collective bargaining agreement providing for notice to
the accused employee and availability of a post-termination grievance
procedure and evidentiary hearing before a neutral and experienced
arbitrator satisfies an employee's constitutional due process rights
under U.S. Supreme Court case law and is superior to the NPRM's hearing
process because, among other things, the arbitration process preserves
the employer's decision-making role and is more efficient because the
union cannot initiate arbitration if misconduct is clear in its
judgment.
One commenter asserted that the live hearing requirement for
postsecondary institutions creates an unnecessary and duplicative
process for employees who are subject to a collective bargaining
agreement. According to this commenter, the collective bargaining
agreement between a recipient and a union usually requires ``just
cause'' for discipline, and ``just cause'' requires the employer to
have evidence of guilt and make decisions after a fair
investigation.\1622\ This commenter further asserts that a hearing is
typically not part of the determination of ``just cause'' unless the
recipient and the union specifically bargain for such a pre-termination
hearing. This commenter stated that unions that do not require a pre-
termination hearing often bargain to provide a grievance procedure that
concludes with an arbitration of the dismissal through a hearing with
cross-examination. This commenter is concerned that a live hearing with
cross-examination under Sec. 106.45(b)(6)(i) will create a significant
disincentive for an employee to complain about harassment because that
employee may be subject to a pre-termination live hearing as well as an
arbitration that requires a hearing with cross-examination. This
commenter also asserts that employers will resolve employment disputes
with employees and unions through resolution agreements to avoid an
additional hearing.
---------------------------------------------------------------------------
\1622\ Kenneth May et al., Elkouri & Elkouri: How Arbitration
Works 15-4 to 15-6 (8th ed. 2017 Supp.).
---------------------------------------------------------------------------
Another commenter expressed concern that applying the proposed
rules to unions or members of unions with collective bargaining
agreements may cause unrest, strikes, and increase litigation risk
under Federal and State labor laws. One commenter asserted that
applying the NPRM to non-student employees may conflict with State tort
law requirements, which impose liability on employers for actions of
their employees in certain circumstances. A few commenters emphasized
that the relationship between recipients and employees is fundamentally
different than the relationship between recipients and students;
recipients may have a strong interest in maintaining privacy for
parties and witnesses in workplace
[[Page 30444]]
investigations because those individuals may continue working within
the campus community. Another commenter asked whether the NPRM requires
disclosure of all related evidence in employee matters, including
potentially confidential employment information regarding other
employees.
Discussion: The Department acknowledges that some collective
bargaining agreements may need to be renegotiated for a recipient to
comply with these final regulations, and the Department understands
that some recipients have concerns about strikes and unrest as well as
increased litigation risk under Federal and State labor laws. The
Department also acknowledges concerns about a recipient's obligation to
comply with various State employment laws and other laws as well as
these final regulations. The Department reminds recipients that
recipients choose to receive Federal financial assistance and that
these final regulations are a condition of that Federal financial
assistance. Recipients may wish to forego receiving Federal financial
assistance if the recipients do not wish to renegotiate a collective
bargaining agreement or are concerned about complying with State
employment laws or other laws. The Department is not intruding on the
freedom of contract, as recipients remain free to choose whether to
enter into an agreement with the Department to comply with these final
regulations as a result of receiving Federal financial assistance.
The Department disagrees with the commenter who recommends adopting
an arbitration process for employees for the purpose of responding to
sexual harassment. We believe that the process in Sec. 106.45 to
address formal complaints of sexual harassment provides robust due
process protections and are not certain whether these same due process
protections will be offered in an arbitration process. With respect to
the arbitration process described by the commenter, the union cannot
initiate arbitration if misconduct is clear in its judgment. Such an
arbitration provision gives great authority to the union to determine
whether the employee is even eligible to receive the opportunity to
enjoy the alleged due process protections in the arbitration process.
Unlike the arbitration process that the commenter describes, these
final regulations provide a formal complaint process that any
complainant may initiate. Additionally, recipients may facilitate an
informal resolution process under Sec. 106.45(b)(9).
The Department appreciates the commenter's concerns about
collective bargaining agreements that require a post-termination
grievance procedure. The commenter acknowledges that requirements in
collective bargaining agreements differ and that some agreements
provide a pre-termination hearing, while other agreements provide a
post-termination hearing. The commenter further acknowledges that the
hearing required in a collective bargaining agreement is a result of a
negotiation or bargain between unions and recipients. If a recipient
chooses to accept Federal financial assistance and thus become subject
to these final regulations, then the recipient may negotiate a
collective bargaining agreement that requires a pre-termination hearing
consistent with the requirements for a hearing under Sec.
106.45(b)(6). Nothing precludes a recipient and a union from
renegotiating agreements to preclude the possibility of having both a
pre-termination live hearing that complies with Sec. 106.45(b)(6) and
a post-termination arbitration that requires a hearing with cross-
examination. These final regulations do not require both a pre-
termination hearing and a post-termination hearing, and recipients have
discretion to negotiate and bargain with unions acting on behalf of
employees for the most suitable process that complies with these final
regulations.
The Department agrees that employers have a strong interest in
maintaining privacy for parties and witnesses in workplace
investigations. In response to concerns regarding privacy and
confidentiality, the Department has added a provision in Sec. 106.71
that requires the recipient to keep confidential the identity of any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness, except as may be permitted by the FERPA
statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as
required by law, or to carry out the purposes of 34 CFR part 106,
including the conduct of any investigation, hearing, or judicial
proceeding arising thereunder.
Changes: The Department has added a provision to Sec. 106.71 that
requires the recipient to keep confidential the identity of any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness, except as may be permitted by the FERPA
statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as
required by law, or to carry out the purposes of 34 CFR part 106,
including the conduct of any investigation, hearing, or judicial
proceeding arising thereunder.
Comments: Commenters cautioned that the Department should not
disrupt school processes. One commenter contended that the NPRM is too
prescriptive and wrongly imposes a one-size-fits-all system, thus
ignoring the reality that recipients employ a wide variety of workers
with different relationships to their employer, such as temporary,
part-time, and full-time employees; or at-will, unionized, and tenured
employees. These different roles often have unique applicable grievance
procedures, and the commenter contended that the Department is wrongly
considering imposing the same process on all of them.
Some commenters believed the NPRM interferes with the at-will
employment doctrine. Commenters asserted the NPRM should not address
harassment by employees; under the at-will doctrine, absent a specific
contract term to the contrary, an employee can quit or be fired without
liability on the employer or employee, with or without cause. One
commenter asserted that the Department failed to provide a principled
reason why sex discrimination and harassment cases, but not other types
of discrimination or harassment, justify overruling the at-will
doctrine. Another commenter emphasized that while Title VII also
prohibits sex discrimination, it does not require the type of detailed
disciplinary proceedings under the NPRM. However, private employers can
presumably fire employees for sexual harassment after simply conducting
an internal investigation. This commenter concluded that it would be
illogical for private employees in every industry except for higher
education to be subject to general rules governing at-will employees,
while the Department suddenly vests employees at private universities
with certain ``due process'' rights.
Commenters discussed specific aspects of the NPRM such as the live
hearing requirement and the possibility that recipients would have to
supply legal advisors for employees and described these provisions as
dramatically altering the nature of the
[[Page 30445]]
relationship between the employee and recipient.
Discussion: The Department realizes that recipients, like most
employers, may have different types of employees, including temporary,
part-time, full-time, tenured, and at-will employees. The presence of
different types of employees does not require that these employees be
treated any differently for purposes of sexual harassment. A recipient
should not be able to treat an allegation of sexual harassment
differently based on the type of employee who is reporting the sexual
harassment or who is the subject of the report. The Department believes
that irrespective of position, tenure, part-time status, or at-will
status, no employee should be subjected to sexual harassment or be
deprived of employment as a result of allegations of sexual harassment
without the protections and the process that these final regulations
provide.
Employers also may not take an adverse employment action against
at-will employees, if such an adverse employment action constitutes
discrimination under Title VII, which includes sex discrimination.
Thus, these final regulations are not imposing obligations that unduly
burden recipient-employers. Contrary to the commenters' assertions, the
Department is not ``overruling'' the at-will employment doctrine or
requiring private employees in every industry except for higher
education to be subject to general rules governing at-will employees.
These final regulations do not apply only to postsecondary institutions
but also to elementary and secondary schools as well as other
recipients of Federal financial assistance such as some museums. These
final regulations apply to any education program or activity of a
recipient receiving Federal financial assistance. If recipients do not
wish to become subject to these final regulations, then recipients may
choose not to receive Federal financial assistance. If the commenter's
argument is followed to its logical conclusion, then a recipient may
terminate an at-will employee for reporting sexual harassment and not
offer any protections to such employees to come forward with
allegations of sexual harassment under Title IX. The Department finds
it concerning that recipients would wish to terminate any employee,
including an at-will employee, for reporting sexual harassment and not
offer any protections to such employees to come forward with
allegations of sexual harassment. Similarly, the Department finds it
concerning that recipients may wish to terminate a person's employment
based on an allegation of sexual harassment without any investigation
or other fact-finding activity. We believe that these final regulations
provide the most appropriate protections and process for both employees
reporting sexual harassment and employees accused of sexual harassment.
As explained earlier in this section, allegations of sexual harassment
have different consequences than allegations of other types of
discrimination. For example, allegations of sexual harassment may lead
to a criminal conviction.
Contrary to the commenter's assertions, these final regulations
would not require a recipient to provide legal advisors for employees.
Advisors do not have to be attorneys, and the Department has revised
the final regulations to clarify that the advisors may be, but are not
required to be, attorneys.\1623\ These final regulations do not
otherwise dramatically alter the relationship between the recipient and
the employee, as employers have always had to address sexual harassment
in the workplace under either Title IX or Title VII. These final
regulations simply provide greater clarity and consistency with respect
to the recipient's obligations to respond to allegations of sexual
harassment under Title IX.
---------------------------------------------------------------------------
\1623\ The final regulations include language clarifying that
party advisors may be, but need not be, attorneys, in Sec.
106.45(b)(5)(iv) (regarding both parties' equal opportunity to
select an advisor of choice), Sec. 106.45(b)(2) (initial written
notice of allegations must advise parties of their right to select
an advisor of choice), and Sec. 106.45(b)(6)(i) (requiring
recipients to provide a party with an advisor to conduct cross-
examination on behalf of a party if the party does not have an
advisor at the hearing).
---------------------------------------------------------------------------
Changes: The Department has revised Sec. 106.45(b)(5)(iv) and
Sec. 106.45(b)(6)(i) to clarify that an advisor may be, but is not
required to be, an attorney.
Comments: One commenter requests clarification on whether the
definition of student as a person who has gained admission implies that
one also becomes an employee at the time of a job offer as opposed to
at the time the offer is signed and accepted.
Discussion: The Department appreciates the opportunity to clarify
whether the definition of the term ``student'' as ``a person who has
gained admission'' \1624\ implies that one also becomes an employee at
the time of a job offer as opposed to at the time the offer is signed
and accepted. The Department notes that the definition of ``student''
in 34 CFR 106.2(r) only refers to that term and does not affect the
definition of the term ``employee'' under the final regulations. The
Department defers to State law with respect to employees, and State law
will govern whether a person is an employee as opposed to an
independent contractor. State law also will govern whether a person is
an employee at the time of a job offer as opposed to the time when that
person accepts the job offer. The Department notes, however, that
employment status may not always be the most relevant determination as
a complainant must be participating in or attempting to participate in
an education program or activity of the recipient at the time of filing
a formal complaint as explained in the definition of ``formal
complaint'' in Sec. 106.30.
---------------------------------------------------------------------------
\1624\ See 34 CFR 106.2(r) (``Student means a person who has
gained admission.'') (emphasis in original).
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter argued the NPRM is unconstitutional under
U.S. Supreme Court case law as applied to religiously-affiliated
institutions insofar as it would preclude recipients from immediately
terminating employment of any employee whose duties include ministerial
tasks.
Discussion: An educational institution that is controlled by a
religious organization is exempt from complying with Title IX and these
final regulations to the extent that Title IX or its implementing
regulations would not be consistent with the religious tenets of such
organization under 20 U.S.C. 1681(a)(3). These final regulations, thus,
are not unconstitutional, and a recipient may assert an exemption under
Sec. 106.12 of these final regulations, if applicable.
Changes: None.
Comments: A few commenters expressed concern about applying the
NPRM to student complaints against employees because it could increase
unfairness and chill reporting. Commenters noted that employee-
respondents generally have funding to pay for private, skilled
attorneys with experience in cross-examination, whereas students may be
more likely to hire non-attorneys or less talented low-cost attorneys
as advisors. This would only exacerbate a power differential between
employees tied to the campus and students who stand to lose a degree
for which they invested significant time, energy, and money. Commenters
also stated that it can be extremely challenging for student-
complainants to be subjected to cross-examination by employee-
respondents, especially if the respondent is a prominent faculty
member.
Discussion: We disagree that these final regulations will chill
reporting as applied to employee-on-student sexual harassment. These
final regulations
[[Page 30446]]
provide a complainant with various options, including the guarantee
that the recipient must offer supportive measures, irrespective of
whether the complainant files a formal complaint. These final
regulations also contain robust retaliation protections. It is unfair
and inaccurate to assume that an employee will always have more
resources than a student and that an employee will be able to hire a
skilled attorney as an advisor. Employees include all levels of
employees, and an employee who is a janitor may not earn as much as an
employee who is a tenured professor. Additionally, some students may
come from wealthy families who will provide an attorney as an advisor
for the student. The status of a party as a student or an employee is
not always indicative of the resources available to that party. Both
parties will be subjected to cross-examination through a party's
advisor, and parties have the option of being in separate rooms during
the live hearing pursuant to Sec. 106.45(b)(6)(i).
Changes: None.
Comments: Some commenters stated that the NPRM's requirements, as
applied to employees, are unduly burdensome on recipients, would
unnecessarily lengthen resolution time frames, and would increase
compliance costs. In particular, commenters noted, the NPRM's live
hearing with cross-examination requirement would lengthen complaint
resolution time, impede recipients' ability to take action against
employees who violated policy, and add substantial compliance costs as
recipients must ensure those overseeing hearings and conducting cross-
examination are competent and qualified to do so. Commenters urged the
Department not to turn recipients into arms of the criminal justice
system.
Discussion: The Department believes that these final regulations
provide a balanced approach to responding to a complainant's report of
sexual harassment, while also affording both parties due process
protections. These final regulations provide that a recipient must
respond promptly in a manner that is not deliberately indifferent under
Sec. 106.44(a). The Department further notes that under Sec.
106.45(b)(1)(v), a recipient must include reasonably prompt time frames
for the conclusion of the grievance process, including reasonably
prompt time frames for filing and resolving appeals and informal
resolution processes, if the recipient offers informal resolution
processes. These final regulations require a recipient-employer to
respond promptly including when a respondent is an employee. For the
reasons stated earlier in this preamble and earlier in this section,
these final regulations should apply to both students and employees.
Recipients should be willing to respond in a manner that is not
deliberately indifferent irrespective of the cost of compliance of
providing hearing officers and advisors to conduct cross-examination.
Additionally, a recipient has more discretion under these final
regulations than under the Department's past guidance. For example, a
recipient may offer an informal resolution process to resolve sexual
harassment allegations as between two employees under Sec.
106.45(b)(9). A recipient, however, cannot offer or facilitate an
informal resolution process to resolve allegations that an employee
sexually harassed a student because as explained more fully in the
``Informal Resolution'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble, the power
dynamic and differential between an employee and a student may cause
the student to feel coerced into resolving the allegations.
Changes: None.
Comments: One commenter argued that the NPRM's application to
academic medical centers is problematic because these institutional
structures typically have thousands of employees uninvolved with any
education program or activity, who work entirely in clinical care and
do not interact with students. The commenter asserted that the
Department should not establish broader due process protections for
these employees than for similarly situated employees at non-academic
medical centers or for students alleging sexual misconduct outside an
education program or activity. The commenter proposed that the
Department allow these entities to develop their own disciplinary
processes.
Another commenter suggested that case law is split as to whether
medical residents and post-graduate fellows, who meet the definition of
``employees'' under Title VII and most statutes, are covered by Title
IX at all. This uncertainty exposes academic medical centers to
litigation risk from both complainants and respondents. The commenter
contended that if the Department concludes medical residents are
covered by Title IX, then the final regulations should not apply to
sexual harassment complaints by patients against medical residents
because the formal grievance process would be unworkable for cases
involving only non-students.
Discussion: The Department understands that academic medical
centers are unique entities, but Congress did not exempt academic
medical centers that receive Federal financial assistance from Title
IX.\1625\ Title IX and these final regulations require recipients to
respond to sexual harassment in the recipient's education program or
activity, as defined in Sec. 106.30. The Department is not creating
broader due process protections for employees at these academic medical
centers than at non-academic medical centers. The Department is
providing adequate due process protections in this context for
employees of any recipient of Federal financial assistance,
irrespective of the nature or character of the recipient. The recipient
remains free to choose not to receive Federal financial assistance and,
thus, not become subject to these final regulations.
---------------------------------------------------------------------------
\1625\ The Department notes that academic medical centers also
may fall under the jurisdiction of the Office for Civil Rights at
the U.S. Department of Health and Human Services.
---------------------------------------------------------------------------
The Department realizes that the live hearing required for
postsecondary institutions in Sec. 106.45(b)(6)(i) may prove
unworkable in a different context. Accordingly, as to recipients that
are not postsecondary institutions, the Department has revised Sec.
106.45(b)(6)(ii) to provide that the recipient's grievance process may
require a live hearing and must afford each party the opportunity to
submit written questions, provide each party with the answers, and
allow for additional, limited follow-up questions from each party.
Academic medical centers are not postsecondary institutions, although
an academic medical center may be affiliated with a postsecondary
institution or even considered part of the same entity as the
postsecondary institution. Through this revision the Department is
giving entities like academic medical centers greater flexibility in
determining the appropriate process for a formal complaint.
Academic medical centers may develop their own disciplinary
processes as long as these processes comply with these final
regulations. These final regulations address sexual harassment as
defined in Sec. 106.30, and nothing in these final regulations
precludes a recipient, including an academic medical center, to respond
to conduct that is not sexual harassment under another provision of the
recipient's code of conduct.
The Department is not categorically exempting any person, including
medical residents, from Title IX and these final regulations. Whether
these final regulations apply to a person, including a medical
resident, requires a factual determination as each incident
[[Page 30447]]
of sexual harassment is unique. If a medical resident is accused of
sexual harassment in an education program or activity of the recipient
against a person in the United States, the recipient must respond
promptly in a manner that is not deliberately indifferent. The
Department notes that the Title IX statute \1626\ and existing Title IX
regulations,\1627\ already contain detailed definitions of ``program or
activity'' that, among other aspects of such definitions, include ``all
of the operations of'' a postsecondary institution or local education
agency. The Department will interpret ``program or activity'' in these
final regulations in accordance with the Title IX statutory (20 U.S.C.
1687) and regulatory definitions (34 CFR 106.2(h)) as well as the
statement (based on Supreme Court language in Davis \1628\) added in
the final regulations to Sec. 106.44(a) that ``education program or
activity'' includes locations, events, or circumstances over which the
recipient exercised substantial control over both the context of the
harassment and the respondent.\1629\
---------------------------------------------------------------------------
\1626\ 20 U.S.C. 1687.
\1627\ 34 CFR 106.2(h); 34 CFR 106.2(i) (defining
``recipient''); 34 CFR 106.31(a) (referring to ``any academic,
extracurricular, research, occupational training, or other education
program or activity operated by a recipient which receives Federal
financial assistance'').
\1628\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646
(1999).
\1629\ ``Education program or activity'' in Sec. 106.44(a) also
includes any building owned or controlled by a student organization
that is officially recognized by a postsecondary institution.
---------------------------------------------------------------------------
The Department disagrees that the formal complaint process would be
unworkable for cases involving only non-students. A recipient may make
supportive measures available to patients and medical residents. For
example, patients may be assigned to a different physician, and a
medical resident's schedule may be changed to avoid interaction with a
complainant or a respondent. Patients may choose to resolve any report
of sexual harassment against a medical resident through an informal
resolution process, if the recipient provides such an informal
resolution process. The Department acknowledges that a person,
including a patient, must be participating in or attempting to
participate in the education program or activity of the recipient with
which the formal complaint is filed. The Department realizes that the
recipient may not require a patient to participate in a formal
complaint process, but a patient who is participating in or attempting
to participate in the education program or activity of the recipient
must have the option to file a formal complaint under these final
regulations.
The Department realizes that the live hearing required for a
postsecondary institution in Sec. 106.45 may prove unworkable in a
different context. Accordingly, for recipients that are not
institutions of higher education, the recipient's grievance process may
require a live hearing and must afford each party the opportunity to
submit written questions, provide each party with the answers, and
allow for additional, limited follow-up questions from each party under
Sec. 106.45(b)(6)(ii). As previously stated, academic medical centers
are not postsecondary institutions, although an academic medical center
may be affiliated with a postsecondary institution or even considered
part of the same entity as the institution of higher education. Through
this revision the Department is giving entities like academic medical
centers greater flexibility in determining the appropriate process for
a formal complaint.
Changes: The Department has revised Sec. 106.45(b)(6)(ii), which
concerns the type of process a recipient must provide in response to a
formal complaint, to apply to recipients that are not postsecondary
institutions.
Comments: One commenter asserted that aspects of Sec. 106.45(b)
are unworkable for U.S. medical schools because medical students
typically participate in clinical clerkships with preceptors located at
separate facilities far from the medical school building. The commenter
emphasized that it is not feasible to ask preceptive physicians at
separate hospital systems who are parties or witnesses to participate
in interviews, hearings, and cross-examination at the home institution.
Discussion: Recipients, including medical schools, must determine
what constitutes an education program or activity. If a medical student
experiences sexual harassment or is accused of sexual harassment in an
education program or activity of the recipient against a person in the
United States, the recipient must respond promptly in a manner that is
not deliberately indifferent. The Title IX statute \1630\ and existing
Title IX regulations,\1631\ already contain detailed definitions of
``program or activity'' that, among other aspects of such definitions,
include ``all of the operations of'' a postsecondary institution or
local education agency. The Department will interpret ``program or
activity'' in these final regulations in accordance with the Title IX
statutory (20 U.S.C. 1687) and regulatory definitions (34 CFR 106.2(h))
as well as the statement (based on Supreme Court language in
Davis\1632\) added in the final regulations to Sec. 106.44(a) that
``education program or activity'' includes locations, events, or
circumstances over which the recipient exercised substantial control
over both the context of the harassment and the respondent. The
commenter's description of the clinical clerkships with preceptors
located at separate facilities far from the medical school building may
or may not be part of the recipient's education program or activity.
The recipient must consider whether the recipient exercised substantial
control over both the respondent and the hospital or medical clinic
where the clinical clerkship is held. The Department also notes that we
have revised Sec. 106.45(b)(1)(iii) to require recipients to train
Title IX personnel on the scope of the recipient's education program or
activity.
---------------------------------------------------------------------------
\1630\ 20 U.S.C. 1687.
\1631\ 34 CFR 106.2(h); 34 CFR 106.2(i) (defining
``recipient''); 34 CFR 106.31(a) (referring to ``any academic,
extracurricular, research, occupational training, or other education
program or activity operated by a recipient which receives Federal
financial assistance'').
\1632\ Davis, 526 U.S. at 646.
---------------------------------------------------------------------------
If the clinical clerkship is part of the education program or
activity of the recipient, the recipient may always ask preceptive
physicians at separate hospital systems to participate in interviews,
hearings, and cross-examination remotely. The Department realizes that
the recipient may not have any control over physicians at separate
hospital systems and allows a recipient to dismiss a formal complaint
if specific circumstances prevent the recipient from gathering evidence
sufficient to reach a determination as to the formal complaint or
allegations therein under Sec. 106.45(b)(3)(ii). Even if a recipient
cannot gather evidence sufficient to reach a determination, the
recipient must still offering supportive measures to its students or
employees who are complainants under Sec. 106.44(a), which may include
the opportunity to participate in a different clinical clerkship to
fulfill an academic requirement.
Changes: None.
Comments: Many commenters offered suggestions to the Department
regarding the application of the NPRM to employees. One commenter
requested that the final regulations explicitly endorse the important
role of shared governance in an institution of higher education's
development of Title IX policies, as faculty are in the best position
to make responsibility determinations regarding faculty-
[[Page 30448]]
respondents. This commenter argued that any Title IX investigation of
faculty should start with a referral to the established faculty
governance committee or, if it does not exist, the final regulations
should mandate its creation.
The commenter also proposed that the final regulations explicitly
require equal due process protections for faculty employees at all
levels. Another commenter proposed that the Department define
``employee'' as including all adults, staff, and volunteers working
under the school's purview. One commenter argued that the final
regulations should not apply to third parties who do not have a formal
affiliation with the recipient.
One commenter requested that the Department make deliberately false
accusations by students against employee-respondents a Title IX
violation as gender discrimination and, if not, then at least require
recipients to take action under other civil rights laws or recipient
policy.
One commenter asserted that the NPRM requires ``equitable''
procedural elements and ``equal'' treatment of parties, but that Title
IX's mandate is for ``equitable'' not ``equal'' access. This commenter
recommended that the Department revise the final regulations to address
the need for ``equitable'' treatment of parties. According to this
commenter, equitable treatment might not be exactly the same treatment
due to the parties' different circumstances, and this commenter
asserted that equity and equality are not synonymous.
Discussion: The Department is aware that many postsecondary
institutions require faculty-governance, and these final regulations do
not preclude participation of a faculty-governance committee for
reports of sexual harassment against faculty members. Indeed, the
hearing officers may be faculty members as long as these hearing
officers are trained, do not have any conflict of interest, do not have
bias for or against complainants or respondents generally or for an
individual complainant or respondent, and comply with the other
requirements in Sec. 106.45(b)(1)(iii). The Department need not
mandate such a faculty-governance committee, as recipients have
discretion to determine how best to deal with reports or formal
complaints of sexual harassment against faculty members. The Department
will defer to the discretion of the recipient in this regard.
As previously stated, Congress did not limit the application of
Title IX to students. 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 . . . .'' Title IX, thus, applies to any
person in the United States who experiences discrimination on the basis
of sex under any education program or activity receiving Federal
financial assistance. Similarly, these final regulations, which address
sexual harassment, apply to any person, including an employee, in an
education program or activity receiving Federal financial assistance.
The Department does not define the level and type of employee, as the
Department may not be able to adequately capture all the possible types
of employees who work for a recipient of Federal financial assistance.
These final regulations also may apply to volunteers, if the
volunteers are persons in the United States who experience
discrimination on the basis of sex under any education program or
activity receiving Federal financial assistance. As previously stated,
each incident of sexual harassment presents unique facts that must be
considered to determine the recipient's obligations under these final
regulations.
These final regulations recognize that a party may make
deliberately false accusations, and the retaliation provision in Sec.
106.71(b)(2) expressly states in relevant part: ``Imposing sanctions
for making a materially false statement in bad faith in the course of a
grievance proceeding under this part does not constitute retaliation .
. . .'' A recipient may take action against a party who makes a
materially false statement in bad faith in the course of a grievance
proceeding. Such a materially false statement may but does not always
constitute discrimination on the basis of sex. A recipient would need
to examine the content, purpose, and intent of the materially false
statement as well as the circumstances under which the statement was
made to determine whether the statement constitutes sex discrimination.
The Department has made revisions to address the need to treat the
parties equitably. The Department revised Sec. 106.44(a) to require
that recipients treat complainants and respondents equitably,
specifically to mean offering supportive measures to a complainant and
a grievance process that complies with Sec. 106.45 before the
imposition of any disciplinary sanctions or other actions that are not
supportive measures, as defined in Sec. 106.30, for a respondent.
Similarly, we have revised Sec. 106.45(b)(1)(i) to require equitable
treatment of complainants by providing remedies where a respondent is
found responsible, and equitable treatment of respondents by applying a
grievance process that complies with Sec. 106.45 before imposing
disciplinary sanctions or other actions that are not ``supportive
measures,'' as defined in Sec. 106.30. In this manner, the final
regulations more clearly define where equal treatment of parties,
versus equitable treatment of parties, is required.
Changes: The Department has revised Sec. 106.44(a) to require
recipients to treat complainants and respondents equitably by offering
supportive measures to a complainant and 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 as defined in Sec. 106.30, against a respondent. Similarly,
we have also revised Sec. 106.45(b)(1)(i) to require equitable
treatment of the parties by providing remedies to a complainant where a
respondent is found responsible and requiring a grievance process that
complies with Sec. 106.45 before the imposition of any disciplinary
sanctions or other actions that are not supportive measures as defined
in Sec. 106.30, against a respondent.
Comments: Many commenters requested clarification from the
Department on matters relating to the application of Title IX to
employees. Commenters asked whether the NPRM only applies to complaints
by students against students, employees, and third parties or whether
it also applies to complaints by employees against students and other
employees. One commenter inquired whether the proposed rules applies to
third-party complaints against students.
Another commenter asserted that Title VII deems employers
responsible for harassment by non-supervisory employees or non-
employees over whom it has control if the employer knew about the
harassment and failed to take prompt and appropriate corrective action;
however, the commenter asserted, the NPRM stated that recipients are
only liable for conduct over which they ``have control.'' This
commenter requested that the Department clarify this intersection of
Title VII and Title IX.
One commenter asked whether the Title VII or Title IX sexual
harassment definition applies where employees allege harassment by
students. One commenter asked whether the NPRM's deliberate
indifference standard or the Title VII standard regarding employer
liability applies for employee-on-employee cases that occur on campus.
[[Page 30449]]
Another commenter asked whether the NPRM applies to students who are
also full-time employees of the recipient.
One commenter expressed concern that the NPRM's live hearing
requirement for sex discrimination, whether involving faculty, staff,
or students, may create confusion and conflict between Title IX, Title
VI, and Title VII. For example, this commenter stated, if allegations
also involve racial discrimination then it is unclear whether the
recipient must carve out the non-sex discrimination issue and proceed
without a live hearing yet address the sex-related claims with a
hearing.
Discussion: These final regulations may apply to reports and formal
complaints by employees against students and other employees, and also
may apply to third-party complaints against students. These final
regulations also may apply to students who are full-time employees. As
explained earlier, Title IX, 20 U.S.C. 1681 prohibits discrimination on
the basis of sex against a person in the United States in an education
program or activity and does not preclude application to specific
groups of people such as employees. Similarly, these final regulations
require a recipient with actual knowledge of sexual harassment in an
education program or activity of the recipient against a person in the
United States to respond promptly and in a manner that is not
deliberately indifferent, under Sec. 106.44(a). If a recipient has
actual knowledge of a student sexually harassing an employee or a third
party in a recipient's education program or activity in the United
States, then the recipient must respond in a manner that is not
deliberately indifferent.\1633\ With respect to the whether a grievance
process is initiated against a respondent, at the time of filing a
formal complaint, a complainant, whether an employee or a third party
or a student, must be participating in or attempting to participate in
the education program or activity of the recipient with which the
formal complaint is filed.\1634\ The Department acknowledges that a
third party may be less likely to participate in a grievance process
under Sec. 106.45 than a party who is a student or employee of the
recipient,\1635\ but nothing prevents a recipient from complying with
these final regulations by promptly responding when the recipient has
actual knowledge of sexual harassment or allegations of sexual
harassment under Sec. 106.44(a), including by offering supportive
measures to a complainant.
---------------------------------------------------------------------------
\1633\ Any person may be a complainant (i.e., a person alleged
to be the victim of sexual harassment), including a student,
employee, or third party. Sec. 106.30 (defining ``complainant'').
Any person may report sexual harassment--whether the person
reporting is the alleged victim themselves, or a third party--and
trigger the recipient's response obligations. E.g., Sec. 106.8(a);
Sec. 106.30 (defining ``actual knowledge'').
\1634\ Sec. 106.30 (defining ``formal complaint''). See also
Sec. 106.45(b)(3)(ii) (authorizing discretionary dismissal of a
formal complaint in certain circumstances, including when the
respondent is no longer enrolled or employed by the recipient, or
where specific circumstances prevent the recipient from gathering
evidence sufficient to reach a determination regarding
responsibility).
\1635\ We reiterate that a recipient is prohibited from
retaliating against any person for participating, or refusing to
participate, in a Title IX grievance process. Sec. 106.71(a).
---------------------------------------------------------------------------
The Department recognizes that Title VII and Title IX may impose
different obligations, but the Department does not administer or
oversee the administration of Title VII. Accordingly, the Department
will not opine on how Title VII should be administered or a recipient's
obligations under Title VII, including when the sexual harassment
definition or reasonableness standard under Title VII applies. To the
extent that the commenters seek clarity on a recipient's
responsibilities under Title IX, these final regulations provide such
clarity. The Department adopts a deliberate indifference standard in
Sec. 106.44(a). The Department recognizes that an employer may have a
different standard under Title VII, and nothing in these final
regulations or in 34 CFR part 106 precludes an employer from satisfying
its legal obligations under Title VII. There is no inherent conflict
between Title VII and Title IX, and the Department will construe Title
IX and its implementing regulations in a manner to avoid an actual
conflict between an employer's obligations under Title VII and Title
IX. The Department also clarifies in Sec. 106.44(a) that education
program or activity includes locations, events, or circumstances over
which the recipient exercised substantial control over both the
respondent and the context in which the harassment occurs.
These final regulations may impose different requirements than
Title VI and Title VII, but they do not present an inherent conflict
with these other statutory schemes. The Department also administers
Title VI and acknowledges that a recipient has discretion to determine
whether the non-sex discrimination issue such as race discrimination
should go through a process like the process described in Sec. 106.45.
If allegations of sexual harassment arise out of the same facts and
circumstances as allegations of race discrimination under Title VI, the
recipient has the discretion to use the process described in Sec.
106.45 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.
Changes: None.
Comments: One commenter expressed support for Sec. 106.6(f), and
asserted that the provision appropriately clarifies that Title IX
cannot deprive individuals of their Title VII rights.
Another commenter argued that Sec. 106.6(f) fails to clearly
distinguish application of Title IX from Title VII. This commenter
urged the Department to clarify Sec. 106.6(f) by identifying which
specific employee Title VII rights Title IX will not derogate, and to
also explicitly state that the NPRM does not create a new Title IX
right of action for employees. Another commenter requested that Title
VII be the exclusive remedy for complainants alleging sex
discrimination in employment, and that the final regulations should
explicitly state that Title VII preempts Title IX in such cases. One
commenter argued that the Department lacks regulatory authority under
Title IX to override statutory rights provided by Title VII. This
commenter provided no further explanation. One commenter suggested that
if Sec. 106.6(f) states that employee rights under Title VII will not
be impinged by Title IX regulations, then the final regulations should
similarly state that Title IX rights will not be impinged by Title VII
regulations.
Discussion: The Department appreciates the comment in support of
its final regulations. The Department does not have the authority to
administer or oversee the administration of Title VII and, thus, will
not opine on any specific rights under Title VII that an employee has.
The Department does not have the power to create a ``new Title IX
right of action for employees.'' The courts will determine what rights
of action employees have under Title IX and Title VII. As previously
noted, the split among Federal courts is whether an implied private
right of actions exists for damages under Title IX for redressing
employment discrimination by employers.\1636\ These cases focus on
[[Page 30450]]
whether Congress intended for Title VII to provide the exclusive
judicial remedy for claims of employment discrimination.\1637\ Courts,
however, have not precluded the Department from administratively
enforcing Title IX with respect to employees. Indeed, the Supreme Court
expressly recognized the application of Title IX to redress employee-
on-student sexual harassment in Gebser.\1638\ The Department notes that
its 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. When the Department was formerly part of
the Department of Health, Education, and Welfare, the Supreme Court
noted that the Department's ``workload [was] primarily made up of
`complaints involving sex discrimination in higher education academic
employment.' '' \1639\
---------------------------------------------------------------------------
\1636\ See Lakosi v. James, 66 F.3d 751, 755 (5th Cir. 1995);
Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y.
1998); Cooper v. Gustavus Adolphus Coll., 957 F. Supp. 191, 193 (D.
Minn. 1997); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97
(D.R.I. 1997); Torres v. Sch. Dist. of Manatee Cnty., Fla., No.
8:14-CV-1021-33TBM, 2014 WL 418364 at *6 (M.D. Fla. Aug. 22, 2014);
Winter v. Penn. State Univ., 172 F. Supp. 3d 756, 774 (M.D. Pa.
2016); Uyai v. Seli, No. 3:16-CV-186, 2017 WL 886934 at *6 (D. Conn.
Mar. 6, 2017); Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112,
1120 (D. Kan. 2017).
\1637\ See id.
\1638\ Gebser, 524 U.S. at 277.
\1639\ Cannon, 441 U.S. at 708 fn.42.
---------------------------------------------------------------------------
The Department is not overriding statutory rights provided by Title
VII, and the commenter does not explain how these final regulations
override any statutory rights under Title VII.
These final regulations do not need to state that Title IX rights
will not be impinged by Title VII regulations, as nothing suggests that
Title VII may impinge on Title IX rights under these final regulations.
As previously noted, the Department does not administer or oversee the
administration of Title VII and will not issue regulations to
administer Title VII.
Changes: None.
Comments: Several commenters contended that establishing different
Title IX standards than other non-discrimination laws will send the
wrong message. Commenters emphasized that all forms of discrimination
are wrong, and the Department should not create different standards for
Title IX with different levels of protection that do not apply to Title
VII and other non-discrimination statutes schools must follow. One
commenter asserted that telling employees to report sexual harassment
under Title IX may confuse people and lead them to believe that sexual
harassment wasn't already illegal prior to Title IX or prior to the
existence of a Title IX office on campus.
Discussion: The Department respectfully disagrees that establishing
different requirements under Title IX than other non-discrimination
laws will send the wrong message. Sex discrimination and the handling
of sex discrimination claims differ in some important ways from other
types of discrimination, such as discrimination on the basis of race.
For example, a person may be criminally charged with some forms of
sexual harassment such as sexual assault. The Department discusses the
differences among various non-discrimination statutes, such as Title
VI, Title IX, and Section 504, in greater detail in the ``Different
Standards for Other Harassment'' subsection of the ``Miscellaneous''
section of this preamble.
The Department acknowledges that these final regulations share some
similarities with Title VII but also differ from Title VII. As
previously explained, an employee of the recipient conditioning the
provision of an aid, benefit, or service of the recipient on the
individual's participation in unwelcome sexual conduct, which is
commonly referred to as quid pro quo sexual harassment, also remains a
part of the Department's definition. Quid pro quo sexual harassment is
also recognized under Title VII.\1640\ As discussed in greater detail,
below, some commenters requested that the Department more closely align
its definition of sexual harassment with the definition that the
Supreme Court uses in the context of discrimination based on sex in the
workplace under Title VII. The Supreme Court declined to adopt the
definition of sexual harassment in the workplace for Title IX, and the
Department is persuaded by the Supreme Court's reasoning in Davis that
``schools are unlike the adult workplace and that children may
regularly interact in a manner that would be unacceptable among
adults.'' \1641\ Similarly, a postsecondary institution also differs
from the workplace. The sense of Congress is that institutions of
higher education should facilitate the free and robust exchange of
ideas,\1642\ but such an exchange may prove disruptive, undesirable, or
impermissible in the workplace. The Department, like the Supreme Court,
does not wish to extend the definition of sexual harassment in Title
VII to Title IX because such an extension would broaden the scope of
prohibited speech and expression and may continue to cause recipients
to infringe upon the First Amendment freedoms of students and
employees.
---------------------------------------------------------------------------
\1640\ E.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
752-53 (1998).
\1641\ Davis, 526 U.S. at 651-52 (citing Meritor Sav. Bank, FSB
v. Vinson, 277 U.S. 57, 67 (1986)).
\1642\ 20 U.S.C. 1101a(a)(2)(C).
---------------------------------------------------------------------------
The Department does not believe that allowing employees to report
sexual harassment or other sex discrimination under Title IX or to the
Title IX Coordinator or a Title IX office will somehow lead people to
believe that sexual harassment was lawful until Title IX was enacted or
until these final regulations take effect. As many commenters have
noted, Title VII also prohibits discrimination based on sex in
employment, and employees should know that Congress has prohibited sex
discrimination in the workplace.
Changes: None.
Comments: Many commenters stated that establishing different
standards in Title IX than in other non-discrimination law will reduce
recipient flexibility. One commenter argued that the NPRM appears to
require schools to establish a more complainant-hostile process for
employee sexual harassment matters than other discrimination-related
and employee misconduct matters. According to this commenter, this may
expose schools to potential Title VII liability for sex discrimination.
One commenter asserted that Sec. 106.45(b)(6)(i), as proposed in
the NPRM, requires a recipient to permit a party's advisor to ask any
questions that are relevant and that the rape shield provision does not
preclude. This commenter was concerned that a wide range of cross-
examination questions may deter victims of sexual harassment, including
employees, from filing a formal complaint.
Commenters also sought clarity as to what extent application of the
proposed rules would impede employers' affirmative defense to
harassment claims under Title VII or be evidence of negligence in
responding to sexual harassment. At least two commenters opined that
these final regulations diminish a recipient's affirmative defense
under Faragher v. City of Boca Raton \1643\ and Burlington Industries,
Inc. v. Ellerth \1644\ commonly referred to as the Faragher-Ellerth
defense. These commenters noted that under the Faragher-Ellerth
defense, an employer must demonstrate that the employee unreasonably
failed to utilize the employer's internal corrective mechanism. One
commenter expressed concern that an employee may successfully argue
that it was reasonable to refuse to participate in a process that
requires a live hearing with cross-examination because such a process
actually deters complaints of sexual harassment. Another commenter
asserted that the Faragher-Ellerth defense requires the employer to
exercise reasonable care and noted that
[[Page 30451]]
an employer is vicariously liable for the actions of its supervisors
under Title VII. This commenter contended that vicarious liability is
at odds with the requirement of actual knowledge, as defined in Sec.
106.30.
---------------------------------------------------------------------------
\1643\ 524 U.S. 775, 777-78 (1998).
\1644\ 524 U.S. 742, 765 (1998).
---------------------------------------------------------------------------
A few commenters suggested that the Department is perversely
imposing more stringent standards for students, including minors, than
adults to get help. These commenters argued that there should not be a
more demanding standard to take care of children than adults. One
commenter generally stated that the Department should be mindful of the
existing Trump Administration policy against creating duplicative or
conflicting regulations.
Another commenter asserted that while one might argue that the
boilerplate language in the proposed rules indicating that nothing
therein derogates an employee's Title VII rights means that schools may
disregard the requirements set out in the proposed rules when
considering employee complaints of sexual harassment, schools choosing
this path would run significant risks. According to this commenter,
such schools would invite OCR complaints or lawsuits by respondents
alleging that their Title IX rights under the proposed regulations had
been violated. This commenter asserted that such a legal challenge by
respondents would no doubt rely heavily upon the Department's
suggestion that any deviation from the proposed rules may constitute
sex discrimination against respondents in violation of Title IX. This
commenter contended that the confusion and potential litigation created
by the proposed rules threatens harm to employees and employers,
serving no one's interest.
Discussion: The Department disagrees that establishing unique
obligations under Title IX than under other non-discrimination law will
reduce flexibility for recipients. Instead, these final regulations
will provide consistency and clarity as to what a recipient's
obligations are under Title IX and how a recipient must respond to
allegations of sexual harassment under Title IX. These final
regulations provide a recipient discretion through the deliberate
indifference standard in Sec. 106.44(a) and through other provisions
such as the provision in Sec. 106.44(b) that the Assistant Secretary
will not second-guess the recipient's determination regarding
responsibility.
These final regulations do not establish a more complainant-hostile
process for employee sexual harassment matters than other
discrimination-related and employee misconduct matters that may expose
schools to potential Title VII liability for sex discrimination. These
final regulations do not favor either complainants or respondents and
require a recipient's response to treat complainants and respondents
equitably under Sec. 106.44(a) and Sec. 106.45(b)(1)(i) by offering a
complainant supportive measures (or remedies where a determination of
responsibility for sexual harassment has been made against the
respondent), and both Sec. 106.44(a) and Sec. 106.45(b)(1)(i)
preclude the imposition of disciplinary sanctions or other actions that
are not supportive measures as defined in Sec. 106.30, against a
respondent unless the recipient first applies a grievance process that
complies with Sec. 106.45. These final regulations do not require a
recipient to violate Title VII, and the commenter does not explain how
these final regulations may expose recipients to liability under Title
VII for sex discrimination. Recipients should comply with both Title
VII and Title IX, to the extent that these laws apply, and nothing in
these final regulations precludes a recipient from complying with Title
VII.
The Department appreciates the commenters' concerns about a live
hearing with cross-examination that allows all relevant questions that
the rape shield provision in Sec. 106.45(b)(6) does not preclude.
Allowing all relevant questions provides a robust process where
decision-makers may make informed decisions regarding responsibility
after hearing all the facts, and these decision-makers receive training
on how to serve impartially, including by avoiding prejudgment of the
facts at issue, conflicts of interest, and bias pursuant to Sec.
106.45(b)(1)(iii). Such a fulsome process does not necessarily deter
complainants from coming forward with allegations of sexual harassment
and filing a formal complaint. Complainants receive the same
opportunity to ask any and all relevant questions, including questions
about a respondent's sexual behavior or predisposition, as the rape
shield provision applies only to the complainant's sexual behavior or
predisposition. A live hearing with cross-examination provides both
parties with a fair, equitable process that results in more accurate
and reliable outcomes. Additionally, the Department added a strong
retaliation provision in Sec. 106.71 which will protect any individual
involved in a Title IX matter, including employees, from intimidation,
threats, coercion, or other discrimination for participating or
refusing to participate in any manner in an investigation, proceeding,
or hearing.
These final regulations would not impede an employer's affirmative
defenses to sexual harassment claims under Title VII, nor do these
final regulations provide evidence of negligence in responding to
sexual harassment under Title VII. These final regulations provide in
Sec. 106.6(f) that nothing in this part shall be read in derogation of
an individual's rights, including an employee's rights, under Title VII
or its implementing regulations. Employers may not be able to use
affirmative defenses to sexual harassment under Title VII for the
purposes of Title IX, but these final regulations do not in any way
derogate an employers' affirmative defenses to sexual harassment under
Title VII. What constitutes sexual harassment and how a recipient is
required to respond to allegations of sex harassment may be different
under Title VII and Title IX.
The Department acknowledges that employers may invoke the Faragher-
Ellerth affirmative defense under Title VII. The Faragher-Ellerth
affirmative defense essentially allows an employer to avoid strict or
vicarious liability for a supervisor's harassment of an employee, when
it does not result in a tangible employment action.\1645\ The defense
requires ``(a) that the employer exercised reasonable care to prevent
and correct promptly any . . . harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer to
avoid harm otherwise.'' \1646\ The Department acknowledges that the
definition and standard of sexual harassment under Title VII is
different than under Title IX, and an employer may need to implement
policies to address conduct that goes beyond the definition of sexual
harassment in Sec. 106.30 to fulfill its obligations under Title VII.
---------------------------------------------------------------------------
\1645\ Ellerth, 524 U.S. at 765.
\1646\ Id.
---------------------------------------------------------------------------
For example, the Faragher-Ellerth affirmative defense requires an
employer to exercise reasonable care with respect to supervisor-on-
employee harassment, while Title IX requires a recipient not to be
deliberately indifferent. As one commenter stated, Title VII also
requires a negligence standard if a co-worker harasses another co-
worker. Title VII defines sexual harassment as severe or pervasive
conduct, while Title IX defines sexual harassment as severe and
pervasive. Under Title VII, an employer may be held vicariously liable
for its
[[Page 30452]]
supervisors' actions, whereas Title IX requires a recipient to have
actual knowledge of sexual harassment. Employers are aware that
complying with Title IX and its implementing regulations does not
satisfy compliance with Title VII. These final regulations expressly
provide that nothing in this part may be read in derogation of an
individual's rights, including an employee's rights, under Title VII,
and these final regulations do not prevent or preclude a recipient from
complying with Title VII.
Additionally, these final regulations clearly provide that a
complainant need not file a formal complaint for the recipient to
provide supportive measures. Indeed, Sec. 106.44(a) requires a
recipient to offer supportive measures to a complainant, irrespective
of whether the complainant files a formal complaint. Nothing in these
final regulations prevents an employer from asserting that the
consideration and provision of supportive measures may fulfill an
employer's obligation to take preventive or corrective measures for
purposes of the Faragher-Ellerth affirmative defense. Similarly, these
final regulations do not prevent an employer from asserting that an
employee's opportunity to file a formal complaint and initiate a
grievance process under Sec. 106.45 may fulfill an employer's
obligation to provide a preventive or corrective opportunity for
purposes of the Faragher-Ellerth affirmative defense, especially as
recipients are required under Sec. 106.8 to notify all employees and
applicants for employment of the Title IX Coordinator's contact
information and the grievance procedures and grievance process,
including how to report or file a complaint of sex discrimination, how
to report or file a formal complaint of sexual harassment, and how the
recipient will respond. Employers will not have to choose between
asserting the Faragher-Ellerth affirmative defense or complying with
these final regulations.\1647\ Although employers may have different
obligations and be subject to different standards under Title VII and
Title IX, these final regulations may be implemented in a manner that
complements these similar yet different obligations.
---------------------------------------------------------------------------
\1647\ The Department has revised Sec. 106.45(b)(3)(i), which
requires a mandatory dismissal in certain circumstances, to clarify
that such a dismissal is solely for Title IX purposes, and does not
preclude action under another provision of the recipient's code of
conduct. If a recipient has a code of conduct for employees that
goes beyond what Title IX requires and these final regulations
require, then a recipient may proceed to enforce its code of conduct
despite dismissing a formal complaint (or allegations therein) for
Title IX purposes. These regulations do not preclude a recipient
from enforcing a code of conduct that is separate and apart from
what Title IX requires; for example, with respect to investigating
and adjudicating misconduct that does not meet the definition of
``sexual harassment'' as defined in Sec. 106.30.
---------------------------------------------------------------------------
The Department disagrees that it is providing more stringent
standards for students, including minors, than adults to get help. As
previously noted, a recipient must offer supportive measures to any
complainant who reports sexual harassment, which will help ensure that
all complainants receive help. These final regulations also contain
some greater protections in the elementary and secondary context, where
there are more minors, than in the higher education context. For
example, the Department's definition of actual knowledge in Sec.
106.30 includes all employees working in the recipient's education
program or activity in the elementary and secondary context, and a
recipient with actual knowledge of sexual harassment in an education
program or activity against a person in the United States is required
to respond promptly in a manner that is not deliberately indifferent
under Sec. 106.44(a).
The Department is mindful of President Trump's Executive Orders,
and these final regulations are not duplicative. The Department is
finally providing regulations that address sexual harassment as sex
discrimination in education programs or activities under Title IX. The
Department has the authority to issue these final regulations and is
clearly stating in these final regulations that these regulations do
not derogate an employee's rights under Title VII.
Finally, at least one commenter misunderstands what the Department
means in Sec. 106.6(f). The Department is not stating in Sec.
106.6(f) that these final regulations do not apply to employees or that
recipients who receive Federal financial assistance must only comply
with Title VII with respect to employees. To the extent that Title IX
may apply to a recipient's employees, a recipient must comply with
Title IX. If a recipient does not comply with Title IX, then a
recipient may be liable under these final regulations and may be the
subject of a complaint to OCR. As explained earlier, Title IX may apply
to a recipient's employees. The Department simply clarifies, through
Sec. 106.6(f), that individuals, including employees, also may have
rights under Title VII, and these final regulations do not derogate
those rights.
Changes: None.
Comments: Several commenters requested that the Department issue
joint guidance with the EEOC to ensure Title VII and Title IX are
interpreted consistently with each other and to minimize potential
conflicts between the two frameworks. One such commenter argued that
the Title IX grievance process should not apply to any adverse
employment action against a student-employee where the job in question
is not an integral part of the recipient's educational program (for
example, where the student accused of sexual harassment is fired from
working at the campus cafeteria).
Discussion: The Department appreciates the commenters' desire for
guidance on Title VII and Title IX. The Department acknowledges that
the Supreme Court has interpreted Title VII and Title IX differently
and we encourage people to rely on case law to understand the different
legal frameworks for Title VII and Title IX. For example, adverse
employment actions are a concept that exist under Title VII case law,
but not Title IX case law. The Department of Education also cannot bind
the EEOC to act or respond in a certain manner through this notice-and-
comment rulemaking on Title IX.
As previously explained, these final regulations require a
recipient with actual knowledge of sexual harassment in an education
program or activity of the recipient against a person in the United
States to respond promptly in a manner that is not deliberately
indifferent. It is irrelevant whether the student-respondent is an
employee if the sexual harassment occurs in an education program or
activity of the recipient against a person in the United States.
Depending on the facts and circumstances of such an incident of sexual
harassment, the recipient may have obligations under both Title VII and
Title IX.
Changes: None.
Comments: One commenter raised the specific issue of a potential
conflict between Sec. 106.44(b)(2) and Title VII implementing
regulations. This commenter asserted that Sec. 106.44(b)(2) would
provide that the Department ordinarily accepts the recipient's factual
determinations regarding responsibility and would not deem it as
deliberately indifferent solely because the Assistant Secretary would
have reached a different outcome. This commenter asserted that Sec.
106.44(b)(2) may conflict with the Title VII requirement that employee
complaints or complaints solely alleging employment discrimination
against an individual filed with the Department must be referred to the
EEOC for their own investigation and evaluation under 28 CFR 42.605.
The commenter emphasized that the EEOC would never
[[Page 30453]]
simply defer to an employer's conclusion that its officials did nothing
wrong. According to this commenter, the EEOC conducts its own
investigation and makes an independent assessment of the facts. This
commenter stated that in some circumstances a referring agency, such as
the Department, is required to ``give due weight to EEOC's
determination that reasonable cause exists to believe that Title VII
has been violated'' under 28 CFR 42.610(a). The commenter urged the
Department to clarify which set of regulations apply in this context to
avoid recipient confusion.
Discussion: The Department appreciates the commenter's concerns but
disagrees that a conflict exists. The Department acknowledges that the
Assistant Secretary will not second-guess a recipient's determination
regarding responsibility under Sec. 106.44(b)(2). These final
regulations, however, do not apply to the EEOC and do not dictate how
the EEOC will administer Title VII or its implementing regulations. If
the Assistant Secretary refers a complaint to the EEOC under Title VII
or 28 CFR 42.605, then the EEOC will make a determination under its own
regulations and not the Department's regulations. Even if the
Department is required in some circumstances to give due weight to the
EEOC's determination regarding Title VII under 28 CFR 42.610(a), the
Department does not have authority to administer or enforce Title VII.
There may be incidents of sexual harassment that implicate both Title
VII and Title IX, and this Department will continue to administer Title
IX and its implementing regulations and will defer to the EEOC to
administer Title VII and its implementing regulations.\1648\
---------------------------------------------------------------------------
\1648\ 28 CFR 42.610(c) also states: ``If the referring agency
determines that the recipient has not violated any applicable civil
rights provision(s) which the agency has a responsibility to
enforce, the agency shall notify the complainant, the recipient, and
the Assistant Attorney General and the Chairman of the EEOC in
writing of the basis of that determination.'' Accordingly, these
regulations contemplate that each agency enforces the civil rights
provisions that the agency has the responsibility to enforce.
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters raised a number of issues that did not
directly relate to the provision in Sec. 106.6(f) regarding Title VII.
One commenter suggested that the Department collect racial data from
campuses to ensure we know how many persons of color have been expelled
under Title IX ``campus kangaroo courts.'' This commenter expressed
concern that the Department may be inadvertently encouraging racial
discrimination while trying to eliminate sex discrimination. Another
commenter sought to remind the Department that, in addition to
enforcing Title IX, the Department enforces Title VII and other civil
rights laws and should vigorously enforce all of them to protect
individual rights. One commenter asserted that the proposed regulations
would apply to sexual harassment complaints and investigations
involving more than eight million employees in primary and secondary
schools, and more than four million employees at institutions of higher
education, including a disproportionately female workforce in
elementary and secondary schools and almost half of faculty in degree-
granting institutions of higher education who are women.
Discussion: The Department did not propose any reporting
requirements from postsecondary institutions or other recipients in the
NPRM and does not think that such reporting requirements are necessary
to address any racial discrimination that may occur in proceedings
under these final regulations. Students who experience racial
discrimination in a proceeding under Title IX may file a complaint
under Title VI with OCR, and the Department will vigorously enforce
Title VI's racial discrimination prohibitions. With respect to concerns
about the number of students of color who may be expelled from school,
we believe that the grievance process in Sec. 106.45 will provide all
parties, including persons of color, with sufficient due process
protections.
Contrary to the commenter's assertions, the Department does not
have the authority to enforce Title VII. The Department is committed to
rigorously enforcing the civil rights laws that it is legally
authorized to enforce.
The Department is aware that these final regulations will impact
recipients and the people in a recipient's education program or
activity and appreciates the commenter's references to statistics about
the people whom these final regulations will affect.
Changes: None.
Section 106.6(g) Exercise of Rights by Parents/Guardians
Comments: Some commenters expressed concern about whether the
proposed regulations allowed parents, on behalf of their child, to
report sexual harassment, file a formal complaint, request particular
supportive measures, review the evidence during a grievance process,
and exercise similar rights given to a party under the proposed rules.
Commenters wondered if a minor student's parent would be permitted to
attend interviews, meetings, and hearings during a grievance process or
whether that would be allowed only if the minor student's parent was
also the party's advisor of choice under Sec. 106.45(b)(5)(iv).
Discussion: The Department recognizes that when a party is a minor
or has a guardian appointed, the party's parent or guardian may have
the legal right to act on behalf of the party. For example, if the
parent or guardian of a student has a legal right to act on behalf of a
student, then the parent or guardian must be allowed to file the formal
complaint on behalf of the student, although the student would be the
``complainant'' under the proposed regulation. In such a situation, the
parent or guardian must be permitted to exercise the rights granted to
the party under these final regulations, whether such rights involve
requesting supportive measures or participating in a grievance process.
Similarly, 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. 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. Additionally, FERPA and its
implementing regulations address the circumstances under which a parent
or guardian is accorded certain rights granted thereunder, such as the
opportunity to inspect and review a student's education records as set
forth at 34 CFR 99.10 and 99.12.\1649\ Thus, FERPA generally would
address a parent's or guardian's opportunity to inspect and review
evidence obtained as part of the investigation that is directly related
to the allegations raised in a formal complaint pursuant to Sec.
106.45(b)(5)(vi), provided such evidence constitutes a student's
education record. However, in circumstances in which FERPA would not
accord a party the opportunity to inspect and review such evidence,
these final regulations do so and provide a parent or guardian who has
a legal right to act on behalf of a party with the same
opportunity.\1650\ To clarify that these final regulations respect all
legal rights of parents or guardians, we have added
[[Page 30454]]
Sec. 106.6(g) to address this issue; this provision applies not only
to sexual harassment proceedings under Title IX but also to any issue
of sex discrimination arising under Title IX.
---------------------------------------------------------------------------
\1649\ 20 U.S.C. 1232g; 34 CFR part 99.
\1650\ Sec. 106.6(e) (providing that the obligation to comply
with this part is not obviated or alleviated by the FERPA statute or
regulations).
---------------------------------------------------------------------------
Changes: We have added Sec. 106.6(g), which addresses exercise of
rights by parents or guardians, and states that nothing in part 106 may
be read in derogation of any legal right of a parent or guardian to act
on behalf of a complainant, respondent, party, or other individual,
subject to paragraph (e) of this section, including but not limited to
filing a formal complaint.
Section 106.6(h) Preemptive Effect
Comments: Commenters requested that the final regulations clearly
state whether these final regulations supersede enforcement of State
non-discrimination or civil rights laws with respect to provisions
concerning sexual harassment. Some commenters reasoned that the final
regulations should be a floor that does not preclude States from
supplementing the legal requirements in these final regulations.
Another commenter expressed concern that these final regulations will
preempt State laws that the commenter described as designed to protect
survivors of sexual violence. One commenter asserted that at least ten
States have State laws that would conflict with the Department's
proposed rules.\1651\ One commenter argued that Virginia law is more
protective of victims than the proposed rules, including prompt review
of any sexual violence report by a university committee within 72 hours
of the report, mandatory notification of law enforcement, robust
privacy protections, extensive outside support for victims, annual
review of sexual violence policies with certification to the Virginia
Secretary of Education, provisions for transcript notations on
perpetrators' academic transcripts, and requiring certain injuries to
children be reported by physicians, nurses, and teachers.
---------------------------------------------------------------------------
\1651\ Commenter cited: California (Cal. Educ. Code Sec. 67386,
Cal. Educ. Code Sec. 66290.1); Connecticut (Conn. Gen. Stat. Ann.
Sec. 10a-55m); Hawaii (Haw. Rev. Stat. Ann. Sec. 304A-120),
Illinois (110 Ill. Comp. Stat. Ann. 155); Maryland (Md. Code Ann.,
Educ. Sec. 11-601); New Jersey (N.J. Stat. Ann. Sec. 18A:61E-2);
New York (N.Y. Educ. Law Sec. Sec. 6439-49); Oregon (Or. Rev. Stat.
Ann. Sec. 350.255, Or. Rev. Stat. Ann. Sec. 342.704); Texas (Tex.
Educ. Code Ann. Sec. 51.9363); and Virginia (Va. Code Ann. Sec.
23.1-806).
---------------------------------------------------------------------------
Another commenter requested that the Department implement the Title
IX regulations in a manner that allows institutions of higher education
in Colorado to retain their existing processes and procedures; while
this commenter did not assert that the proposed regulations directly
conflict with the processes and procedures that institutions of higher
education in Colorado use, the commenter asserted that changing current
Title IX policies and procedures would be costly and Colorado
institutions of higher education already have policies and procedures
in place that address due process concerns and protect survivors. A
commenter from Hawaii expressed concerns that a ``2018 state Title IX
bill'' shows that Hawaii constituents take Title IX very seriously and
argued that the NPRM makes it unclear how Hawaii would implement its
State law if the NPRM were to take effect.
At least one commenter advised the Department to include an
explicit preemption clause in the final regulations, given the
likelihood of conflict with State laws, unclear case law, and because
education is an area where the Federal government does not occupy the
entire field. This commenter relied for its arguments on the Tenth
Amendment, and the Supreme Court's ruling in National Federation of
Independent Business v. Sebelius.\1652\ This commenter specifically
noted that there is a provision in the Department's current regulations
implementing Title IX, which addresses preemption. Current 34 CFR
106.6(b) provides ``The obligation to comply with this part is not
obviated or alleviated by any State or local law or other requirement
which would render any applicant or student ineligible, or limit the
eligibility of any applicant or student, on the basis of sex, to
practice any occupation or profession.'' This commenter contended that
34 CFR 106.6(b) may cause a court to question why the regulations
implementing Title IX contain only one provision that specifically
addresses preemption.
---------------------------------------------------------------------------
\1652\ 567 U.S. 519 (2012).
---------------------------------------------------------------------------
Discussion: The Department reiterates that nothing in these final
regulations, including the provisions concerning sexual harassment with
which commenters expressed concern, inherently prevents recipients from
complying with State and local laws or policies. With respect to
aspects of State laws that commenters asserted ``diverge from'' the
NPRM, the Department disagrees that commenters identified an actual
conflict between State law and these final regulations, as explained
throughout this section of the preamble.
Virginia law, as described by the commenter, does not conflict with
these final regulations. These final regulations do not prohibit
extensive outside support for victims, notations on academic
transcripts, annual review of sexual violence policies, or any of the
other aspects of Virginia law that the commenter described. Similarly,
these final regulations may not conflict with processes and procedures
used by institutions of higher education in Colorado; to the extent
that the commenter was asserting that Colorado institutions should not
be required to expend resources changing aspects of their Title IX
policies and procedures because Colorado law already ensures that
Colorado institutions appropriately support survivors while addressing
due process concerns, the Department has determined that a standardized
Title IX grievance process and uniform requirements that recipients
offer supportive measures to complainants constitute the most effective
procedures and requirements to further Title IX's non-discrimination
mandate. While institutions may find it necessary to expend resources
to come into compliance with these final regulations, the benefits of
ensuring that every student, in every school, college, and university
that receives Federal funds, can rely on predictable, transparent,
legally binding rules for how a recipient responds to sexual
harassment, outweigh the costs to recipients of altering procedures to
come into compliance with the requirements in these final regulations.
Recipients may continue to comply with State law to the extent that it
does not conflict with the requirements in these final regulations
addressing sexual harassment. The Department appreciates that many
States have laws that address sexual harassment, sexual violence, sex
offenses, sex discrimination, 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.
In the event of an actual conflict between State or local law and
the provisions in Sec. Sec. 106.30, 106.44, and 106.45, which address
sexual harassment, the latter would have preemptive effect. 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.'' \1653\ It is well-established that
[[Page 30455]]
``state laws can be pre-empted by federal regulations as well as by
federal statutes.'' \1654\ 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.'' \1655\ 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.
---------------------------------------------------------------------------
\1653\ Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)
(internal quotation marks and citations omitted). The U.S.
Department of Justice previously expressed a similar position with
respect to the preemptive effect of other regulations promulgated by
the Department. Statement of Interest by the United States,
Massachusetts v. Pa. Higher Educ. Assistance Agency, d/b/a FedLoan
Servicing, No. 1784-CV-02682 (Mass. Super. Ct. filed Jan. 8, 2018).
\1654\ Hillsborough Cnty., Fla. 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''); see Geier v. Am. Honda
Motor Co., Inc., 529 U.S. 861, 873 (2000).
\1655\ La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 396 (1986).
---------------------------------------------------------------------------
In response to commenters' requests for a regulation that expressly
addresses whether these final regulations concerning sexual harassment
preempt State or local law and to generally address commenters'
concerns about preemption, the Department has added Sec. 106.6(h)
which provides that to the extent of a conflict between State or local
law and Title IX as implemented by Sec. Sec. 106.30, 106.44, and
106.45, the obligation to comply with Sec. Sec. 106.30, 106.44, and
106.45 is not obviated or alleviated by any State or local law. The
Department acknowledges that its current regulations in 34 CFR 106.6(b)
expressly address preemption with respect to any State or local law or
other requirement which would render any applicant or student
ineligible, or limit the eligibility of any applicant or student, on
the basis of sex, to practice any occupation or profession. The
Department does not wish for any recipient or court to conclude that 34
CFR 106.6(b) constitutes the only instance in which the Department
intended to give preemptive effect to its regulations promulgated under
Title IX. By adding Sec. 106.6(h), the Department clearly and
unequivocally states its intention that these final regulations
concerning sexual harassment preempt State and local law to the extent
of a conflict.
The Department cannot state categorically that the final
regulations concerning sexual harassment are always a ``floor'' because
in some cases these final regulations may require more protections with
respect to sexual harassment as a form of sex discrimination than what
State law may require. Similarly, some State laws may require
recipients to provide additional protections for both complainants and
respondents that exceed these final regulations.\1656\ As long as State
and local laws do not conflict with the final regulations concerning
sexual harassment, recipients should comply with the State and local
laws as well as these final regulations.
---------------------------------------------------------------------------
\1656\ The Department in its 2001 Guidance and specifically in
the context of the due process rights of the accused, acknowledged
that ``additional or separate rights may be created for employees or
students by State law.'' 2001 Guidance at 22. In both the 2001
Guidance and these final regulations, the Department takes the
position that any additional or separate rights do not relieve the
recipient of complying with Title IX and its implementing
regulations. See id.
---------------------------------------------------------------------------
Changes: The Department has added Sec. 106.6(h), which provides
that to the extent of a conflict between State or local law, and Title
IX as implemented by Sec. Sec. 106.30, 106.44, and 106.45, the
obligation to comply with Sec. Sec. 106.30, 106.44, and 106.45 is not
obviated or alleviated by any State or local law.
Comments: One commenter argued that the Department has no right to
invade the police powers of a State like New York, which has already
regulated extensively on the topic of campus sexual harassment and
assault, and the NPRM would inappropriately ``lessen the
effectiveness'' of New York's ``Enough is Enough'' law as well as the
New York's Dignity for all Students Act (DASA), if not outright
contradict it. For example, some commenters noted that New York's
``Enough is Enough'' law requires extensive information outlining
requirements that cover content, training, and distribution of specific
information, requires postsecondary institutions to adopt a uniform
definition of affirmative consent, requires ongoing training year-round
to address topics related to sexual harassment, and requires periodic
campus climate assessments, among other requirements. Other commenters
also described aspects of New York's ``Enough is Enough'' law. One
commenter asserted that the proposed regulations require a recipient to
dismiss a complaint if alleged misconduct did not occur within the
institution's program or activity, whereas New York law may still
require a recipient to address such misconduct. One commenter stated
that New York law requires affirmative consent for sexual activity. At
least one commenter urged the Department to adopt the provisions in New
York's ``Enough is Enough'' law.
Some commenters expressed concerns about the proposed rules
permitting delays in a grievance process for longer than what is
permitted under State law. According to one commenter, New York's law
specifies that ten days is the maximum number of days for a temporary
delay when law enforcement action is taking place concurrently with a
campus disciplinary process.
Discussion: The Department does not believe that these final
regulations generally conflict with State and local laws. To address
commenters' questions about preemption and for the reasons explained
above, the Department has added Sec. 106.6(h) which provides that to
the extent of a conflict between State or local law and Title IX as
implemented by Sec. Sec. 106.30, 106.44, and 106.45, the obligation to
comply with Sec. Sec. 106.30, 106.44, and 106.45 is not obviated or
alleviated by any State or local law.
With respect to New York's ``Enough is Enough'' law and DASA, these
final regulations do not appear to directly conflict with the
commenters' description of State law requirements. These final
regulations do not prevent a postsecondary institution from engaging in
ongoing or year-round training (of employees, or students), conducting
campus climate assessments, or adopting a particular definition of
consent. Indeed, Sec. 106.30 expressly states that the Assistant
Secretary will not require recipients to adopt a particular definition
of consent with respect to sexual assault, a provision that
specifically addresses the issue raised by commenters, that some State
laws require institutions to use an affirmative consent definition.
Similarly, these final regulations acknowledge in revised Sec.
106.45(b)(3)(i) that even though a recipient may be required to dismiss
a formal complaint in certain circumstances, such a dismissal is only
for Title IX purposes and does not preclude the recipient from action
under another provision of the recipient's code of conduct.
Accordingly, if New York law requires a recipient to respond to conduct
that these final regulations do not deem covered under Title IX, a
recipient may do so. The Department has considered the provisions for
addressing sexual harassment and sexual assault contained in various
State laws, including in New York, and in use by various individual
institutions. However, the Department does not wish to adopt wholesale
New York's ``Enough is Enough'' law or other State laws or
institutional policies and explains throughout this preamble why these
final regulations provide the best means
[[Page 30456]]
for effectuating Title IX's non-discrimination mandate.
These final regulations do not require a recipient to delay a
grievance process for longer time periods than what is permitted under
State law. The Department emphasizes that a recipient must respond
``promptly'' when it has actual knowledge of sexual harassment in its
education program or activity pursuant to Sec. 106.44(a). Section
106.45(b)(1)(v) regarding reasonably prompt time frames for the
conclusion of the grievance process would not necessarily conflict with
State laws by allowing delays during a grievance process, for good
cause, including concurrent law enforcement activity. For example,
there is no inherent conflict with a temporary ten-day delay, which
according to a commenter is permissible under New York State law when a
concurrent law enforcement action is taking place, as long as a
recipient responds promptly when it has actual knowledge of sexual
harassment in its education program or activity and also meets the
requirement in Sec. 106.45(b)(1)(v) to conclude its grievance process
under reasonably prompt time frames the recipient has designated.
Accordingly, the commenter's example of a potentially conflicting State
law does not in fact present an inherent conflict with these final
regulations.
Changes: None.
Comments: Other commenters expressed concern that the proposed
regulations may conflict with a union's duty to provide representation
during the grievance process. One commenter asserted that many State
labor laws already provide that an employee subject to investigatory
interviews is allowed to have a union representative present for a
meeting that might lead to discipline.
Discussion: There is no inherent conflict between these final
regulations and any requirement that a union representative must be
present for an investigatory interview that might lead to discipline.
These final regulations require a recipient to provide a written notice
upon receipt of a formal complaint of sexual harassment, to both
parties, that the parties may have ``an advisor of their choice, who
may be, but is not required to be, an attorney'' pursuant to Sec.
106.45(b)(2)(i)(B), and also require (in Sec. 106.45(b)(5)(iv)) a
recipient to provide the parties with the same opportunities to have an
advisor present during any grievance proceeding, without limiting the
choice or presence of advisor for either the complainant or respondent.
Nothing in these final regulations precludes a recipient from complying
with the State laws that the commenter describes; Sec.
106.45(b)(5)(iv) means that a recipient cannot preclude a party from
selecting a union representative as the party's advisor of choice
during a Title IX grievance process. Furthermore, while Sec. 106.71
requires a recipient to keep confidential the identity of parties to a
Title IX grievance process, which limits the discretion of a recipient
to permit parties to have persons other than the party's advisor of
choice present during the grievance process, that provision limits the
confidentiality obligation by expressly stating that the recipient must
keep party identities confidential except as required by law. If a
State law requires a recipient to permit a union representative to be
present during a disciplinary proceeding, the recipient may not be in
violation of these final regulations by permitting a party to a Title
IX grievance process from being accompanied by both an advisor of
choice and a union representative. We reiterate, however, that a party
is always entitled under these final regulations to select a union
representative as the party's advisor of choice to advise and assist
the party during the grievance process.
In the event of an actual conflict between State labor laws or
union contracts and the final regulations, then the final regulations
would have preemptive effect. To generally address commenters'
questions about preemption and for the reasons explained above, the
Department has added Sec. 106.6(h) which provides that to the extent
of a conflict between State or local law and Title IX as implemented by
Sec. Sec. 106.30, 106.44, and 106.45, the obligation to comply with
Sec. Sec. 106.30, 106.44, and 106.45 is not obviated or alleviated by
any State or local law.
Changes: None.
Comments: One commenter asserted that Sec. 106.8(d) conflicts with
Minnesota State law, under which Minnesota institutions of higher
education can address sexual misconduct occurring outside the United
States. This commenter argued that, because study abroad programs are
educational and approved by the home campus (located in the United
States), the Department should ensure that recipients have the ability
to protect students and employees by providing remedial services and
imposing discipline over campus activities occurring outside the United
States.
Discussion: The final regulations, by recognizing the
jurisdictional limitation in the Title IX statute, 20 U.S.C. 1681(a)
(which states that ``no person in the United States'' may be
discriminated against on the basis of sex), do not conflict with State
laws that allow or require a recipient to address discrimination or
misconduct that falls outside Title IX. Nothing in the final
regulations precludes recipients from addressing sexual misconduct that
occurs in a recipient's study abroad programs. The Department has
revised Sec. 106.45(b)(3)(i) to clarify that a mandatory dismissal of
allegations in a formal complaint of sexual harassment because the
allegations concern sexual harassment that occurred outside the United
States is a dismissal only for Title IX purposes and does not preclude
action under another provision of the recipient's code of conduct.
Accordingly, a recipient may address conduct that occurs outside of the
United States pursuant to its own code of conduct, including where a
recipient is required to address such conduct under a State law.
Changes: None.
Comments: Some commenters argued that ending the single
investigator model would conflict with State laws. Commenters stated
that ending the single investigator model conflicts with State law
requirements governing elementary and secondary school administrators
because in the elementary and secondary school context, a site
administrator typically has final responsibility for Title IX
compliance. These commenters argued that the Department should not
preclude a site administrator from being the Title IX Coordinator, the
investigator, and the decision-maker, because the typical job
description for a site administrator requires that person to be a
knowledgeable investigator familiar with school district policy and the
school community best positioned to fulfill the functions of a Title IX
Coordinator, investigator, and decision-maker. Commenters asserted that
under State laws, site administrators must respond to, investigate, and
intervene regarding discrimination complaints, including following
established disciplinary procedures as applicable. One commenter
reasoned that if the respondent is an employee then the site
administrator with line authority may be in the best position to
investigate due to confidentiality with personnel issues, and the
Department should not create a conflicting process.
Discussion: With respect to potential conflict with State laws
regarding the prohibition of the single investigator model contained in
Sec. 106.45(b)(7)(i) of the final regulations, the final regulations
preclude the decision-maker from being the same person as the Title IX
Coordinator or the investigator, but
[[Page 30457]]
do not preclude the Title IX Coordinator from also serving as the
investigator. Further, the final regulations do not prescribe which of
the recipient's administrators are in the most appropriate position to
serve as a Title IX Coordinator, investigator, or decision-maker, and
leave recipients discretion in that regard, including whether a
recipient prefers to have certain personnel serve in certain Title IX
roles when the respondent is an employee. Finally, although the final
regulations, Sec. 106.45(b)(7)(i) precludes the decision-maker from
being the same person as the Title IX Coordinator or investigator, this
provision does not preclude the investigator from, for instance, making
recommendations in an investigative report, so long as the decision-
maker exercises independent judgment in objectively evaluating relevant
evidence to reach a determination regarding responsibility. Thus, the
Department does not believe that the commenter's description of the
typical job duties of a site administrator under State laws poses an
actual conflict with the final regulations. To generally address
commenters' questions about preemption and for the reasons explained
above, the Department has added Sec. 106.6(h) which provides that to
the extent of a conflict between State or local law and Title IX as
implemented by Sec. Sec. 106.30, 106.44, and 106.45, the obligation to
comply with Sec. Sec. 106.30, 106.44, and 106.45 is not obviated or
alleviated by any State or local law.
Changes: None.
Comments: Some commenters contended that the NPRM's jurisdictional
approach conflicts with State laws, which may pose enforcement
problems, create confusion, impose additional cost burdens, and trigger
lengthy litigation. These commenters noted, for example, that
California explicitly requires institutions of higher education to have
policies addressing sexual violence involving students both on campus
and off campus and that New Jersey law includes a broader definition of
sexual misconduct that includes conduct occurring in certain off-campus
locations.
Discussion: With respect to potential conflict with State laws that
may have different jurisdictional schemes, the Department reiterates
that nothing in the final regulations prevents recipients from
initiating a student conduct proceeding or offering supportive measures
to students who report sexual harassment that occurs outside the
recipient's education program or activity, and that the final
regulations do not distinguish between off-campus and on-campus
conduct. Instead, these final regulations require a recipient with
actual knowledge of sexual harassment in an education program or
activity of the recipient against a person in the United States to
respond promptly in a manner that is not deliberately indifferent. The
Department has revised Sec. 106.45(b)(3)(i) to clarify that a
mandatory dismissal of allegations in a formal complaint of sexual
harassment because the alleged conduct did not occur in the recipient's
education program or activity is only for purposes of Title IX and does
not preclude action under another provision of the recipient's code of
conduct. A recipient may address conduct that Title IX and these final
regulations do not require a recipient to address, pursuant to its own
code of conduct, including where the recipient is obligated to address
the conduct under a State law. To generally address commenters'
questions about preemption and for the reasons explained above, the
Department has added Sec. 106.6(h) which provides that to the extent
of a conflict between State or local law and Title IX as implemented by
Sec. Sec. 106.30, 106.44, and 106.45, the obligation to comply with
Sec. Sec. 106.30, 106.44, and 106.45 is not obviated or alleviated by
any State or local law.
Changes: None.
Comments: Some commenters argued that the proposed rules should not
require school districts to adopt and publish a grievance procedure
that aligns with the proposed regulations, and that instead the
Department should permit school districts to adopt and publish
grievance procedures that align with their State's requirements where
States have acted on their own authority to require school districts to
adopt grievance procedures related to non-discrimination, sexual
harassment, and due process in the context of student discipline.
Commenters argued that if the Department does not permit school
districts to do this, the final regulations will create uncertainty and
impose an unnecessary burden on school districts, potentially
conflicting with State laws.
Discussion: Nothing in the final regulations inherently prevents
school districts from adopting and publishing grievance procedures, and
a grievance process that complies with Sec. 106.45 for resolution of
formal complaints of sexual harassment, that align with their State's
requirements where States have acted on their own authority to require
school districts to adopt grievance procedures related to non-
discrimination, sexual harassment, and due process in the context of
student discipline. However, in the event of an actual conflict between
these final regulations concerning sexual harassment and State laws or
local laws, the final regulations would have preemptive effect over
conflicting State or local law. To generally address commenters'
questions about preemption and for the reasons explained above, the
Department has added Sec. 106.6(h) which provides that to the extent
of a conflict between State or local law and Title IX as implemented by
Sec. Sec. 106.30, 106.44, and 106.45, the obligation to comply with
Sec. Sec. 106.30, 106.44, and 106.45 is not obviated or alleviated by
any State or local law.
Changes: None.
Comments: A few commenters argued that the NPRM proposes to set a
national standard on various matters related to the investigation and
adjudication of claims of sexual harassment, including sexual assault,
by school districts and public and private institutions of higher
education, that those same topics are the subject of State, local, and
Tribal laws, but that the NPRM contains no discussion of preemption,
contrary to both Executive Order 13132 and Executive Order 12988, and
the 2009 Presidential Preemption Memorandum.
A few commenters asserted that it is inappropriate for the
Department to intrude on areas of traditional State and local control,
such as regulation of education. Commenters argued that, under
Executive Order 13132, the Department should have consulted with State
and local officials before issuing the proposed rules because the
Department is formulating policy that will have federalism implications
and may limit States' ability to protect their own constituents'
safety. One commenter contended that the Department is leaving States
with an impossible choice between accepting Federal funding and
protecting students' full access to their education. This commenter
also asserted that the NPRM could keep States from regulating in an
area of traditional State authority without good cause, thus amounting
to a constructive revocation of States' power beyond the Department's
authority under statute.
Another commenter asserted that the impact of the Supreme Court's
Sebelius decision \1657\ on Title IX is unclear and argued that a law
enacted under the Spending Clause may be analyzed for constitutionality
under a contract theory or the unconstitutional conditions doctrine.
This commenter contended that the Department is favoring a
[[Page 30458]]
contract theory and that if the unconstitutional conditions doctrine is
applied, then the impact of these final regulations on State laws,
recipients, and students will require a State-by-State fact-intensive
inquiry. According to this commenter, the uncertainty of how
constitutional law will apply to these final regulations will create
confusion for recipients who must comply with State laws as well as
these final regulations.
---------------------------------------------------------------------------
\1657\ Commenter cited: Nat'l Fed'n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012).
---------------------------------------------------------------------------
Discussion: As an initial matter, some commenters' characterization
of Executive Order 13132, 64 FR 43255 (Aug. 10, 1999) is inaccurate.
That Order's goal was ``to guarantee the Constitution's division of
governmental responsibilities between the Federal government and the
states'' by ``further[ing] the policies of the Unfunded Mandates Reform
Act''.\1658\ The purpose of that statute is ``to end the imposition, in
the absence of full consideration by Congress, of Federal mandates on
State, local, and Tribal governments without adequate Federal funding,
in a manner that may displace other essential State, local, and tribal
governmental priorities.'' \1659\ In other words, when the Federal
government proposes to impose an unfunded mandate on the States
(including local governments) and Tribal governments with federalism
implications and effects on State and local laws, Executive Order 13132
requires the Federal government to consult with State and local
authorities. However, application of these final regulations is
entirely dependent on whether an education program or activity receives
Federal financial assistance; these final regulations are not a mandate
(unfunded or otherwise).\1660\
---------------------------------------------------------------------------
\1658\ 2 U.S.C. 1501 et seq.
\1659\ 2 U.S.C. 1501(2).
\1660\ See 20 U.S.C. 1681(a).
---------------------------------------------------------------------------
Furthermore, as this preamble's discussion pertaining to the
Spending Clause of the U.S. Constitution demonstrates,\1661\ Title IX
was enacted pursuant to that constitutional provision. ``Congress may
use its spending power to create incentives for States to act in
accordance with Federal policies.'' \1662\ ``[W]hen `pressure turns
into compulsion,' ''--such as undue influence, coercion or duress--
``the legislation runs contrary to our system of federalism.'' \1663\
As the Spending Clause analysis demonstrates, the Federal government is
not coercing recipients to comply with these final regulations. Title
IX and its implementing regulations fall within the authority of the
Federal government: operators of education programs or activities must
comply with Title IX's non-discrimination mandate, if an education
program or activity receives Federal financial assistance. By statute,
Congress has conferred authority to the Department to promulgate
regulations under Title IX to effectuate the purposes of Title
IX.\1664\ Nor is there any support for the argument that the Federal
government is precluding the States from regulating in an area of
traditional State authority without good cause. 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.'' \1665\ The commenter's assertion that
protection of students' equal access to education is an area of
traditional State control indicates that these final regulations are
not invalid even under the unconstitutional conditions doctrine of the
Spending Clause analysis, because the States themselves are at liberty
to enact these regulations.\1666\ Nothing in these final regulations
prevents States from continuing to address discrimination on the basis
of sex in education, or equal educational access on the basis of sex,
in a manner that also complies with these final regulations. Moreover,
these final regulations do not require the relinquishment of a
constitutional right and expressly provide in Sec. 106.6(d) that these
final regulations do not require the restriction of any rights
guaranteed against government action by the U.S. Constitution,
including but not limited to the First, Fifth, and Fourteenth
Amendments of the U.S. Constitution. Irrespective of whether a court
applies a contract theory or the unconstitutional conditions doctrine,
these final regulations pass constitutional muster. These final
regulations are in pursuit of the general welfare, are unambiguous, and
are related to a national concern.\1667\ Sexual harassment as a form of
sex discrimination is an issue that is national in scope and
significance, and Congress enacted Title IX to address sex
discrimination on a Federal level.
---------------------------------------------------------------------------
\1661\ See the ``Spending Clause'' subsection of the
``Miscellaneous'' section of this preamble.
\1662\ Sebelius, 567 U.S. at 577-78.
\1663\ Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548,
590 (1937)).
\1664\ 20 U.S.C. 1682.
\1665\ Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1,
17 (1981).
\1666\ See South Dakota v. Dole, 483 U.S. 203, 209-12 (1987).
\1667\ See id. at 206-09.
---------------------------------------------------------------------------
Nor does the 2009 Presidential Preemption Memorandum (``2009 Obama
Memorandum'') support the commenters' argument.\1668\ The objective of
that 2009 Obama Memorandum was to proclaim the ``general policy'' that
``preemption of State law by executive departments and agencies should
be undertaken only with full consideration of the legitimate
prerogatives of the States and with a sufficient legal basis for
preemption.'' \1669\ The 2009 Obama Memorandum asserted that the States
do have a potent role in protecting the health and safety of citizens
and the environment.\1670\ The 2009 Obama Memorandum stated that
Federal overreach through preemption obstructs States from ``apply[ing]
to themselves rules and principles that reflect their own particular
circumstances and values.'' \1671\ On this ground, President Obama
directed executive branch agencies not to include preemption statements
in ``regulatory preambles . . . except where preemption provisions are
also included in the codified regulation'' or in ``codified regulations
except where such provisions would be justified under legal principles
governing preemption, including the principles outlined in Executive
Order 13132.'' \1672\ President Obama also directed agencies to
``review regulations issued in the last 10 years that contain
statements in regulatory preambles or codified provisions intended . .
. to preempt State law, in order to decide whether such statements are
justified under applicable legal principles governing preemption.''
\1673\ Even assuming that the 2009 Obama Memorandum applies, the
Department has in fact complied with it, with respect to promulgation
of these final regulations.
---------------------------------------------------------------------------
\1668\ See 74 FR 24693 (2009).
\1669\ Id.
\1670\ Id.
\1671\ Id.
\1672\ Id.
\1673\ Id.
---------------------------------------------------------------------------
Furthermore, Executive Order 12988, a Clinton Administration
executive order (to which the 2009 Obama Memorandum does not cite),
requires agencies, when promulgating regulations, to ``make every
reasonable effort . . . [to] specif[y] in clear language the preemptive
effect, if any, to be given to the regulation.'' The Department has
complied with Executive Order 12988 as well, and these final
regulations clearly state in Sec. 106.6(h) that to the extent of a
conflict between State or local law, and Title IX as implemented by
Sec. Sec. 106.30, 106.44, and 106.45, the obligation to comply with
Sec. Sec. 106.30, 106.44, and 106.45 is
[[Page 30459]]
not obviated or alleviated by any State or local law.
These final regulations also do not violate the Tenth Amendment.
That Amendment 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.'' \1674\ 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.'' \1675\
The Tenth Amendment ``states but a truism that all is retained which
has not been surrendered.''\1676\ As the constitutional commenter and
chronicler, the Honorable Joseph Story, Associate Justice, Supreme
Court of the United States, explained, ``[t]his amendment is a mere
affirmation of what, upon any just reasoning, is a necessary rule of
interpreting the constitution. Being an instrument of limited and
enumerated powers, it follows irresistibly, that what is not conferred,
is withheld, and belongs to the state authorities.'' \1677\ 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.''\1678\
Just as in New York v. United States, in which the ``Petitioners d[id]
not contend that [the Federal government] lacks the power to regulate
the disposal of low level radioactive waste,'' \1679\ here too there
can be no dispute that the Federal government retains the authority to
regulate sexual harassment and assault, a national problem, in
education programs or activities that receive Federal financial
assistance, even though the same matters also fall within the
traditional police powers of the States. The 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.
---------------------------------------------------------------------------
\1674\ U.S. Const. amend. X.
\1675\ New York v. United States, 505 U.S. 144, 149 (1992).
\1676\ United States v. Darby, 312 U.S. 100, 124 (1941).
\1677\ 3 J. Story, Commentaries on the Constitution of the
United States 752 (1833).
\1678\ Garcia v. San Antonio Metro. Transit Auth., 469 U. S.
528, 549 (1985) (citations and internal quotation marks omitted).
\1679\ New York, 505 U.S. at 159-60.
---------------------------------------------------------------------------
Although a commenter's assertion that States possess general police
powers is correct,\1680\ the Supreme Court also has held that
Congress's authority to act can be quite expansive under the powers
granted to Congress under the U.S. Constitution, and such exercise of
enumerated powers by Congress does not convert Federal government
authority into general police powers.\1681\ The Department disagrees
with a commenter's assertion that these final regulations alter the
nature of the bargain recipients accept in exchange for Federal
financial assistance in violation of Congress's Spending Clause
authority, notwithstanding the Supreme Court's holding in Sebelius that
congressional expansion of the Medicaid program violated the Spending
Clause. The Sebelius Court reasoned that the Affordable Care Act at
issue in that case expanded the Medicaid program in a manner that
``accomplishes a shift in kind, not merely degree.'' \1682\ The
Sebelius Court explained that Congress exceeded its Spending Clause
authority because it attempted to ``transform[]'' the original Medicaid
program from a program ``to cover medical services for four particular
categories of the needy [individuals with disabilities, the blind,
elderly, and needy families with dependent children]'' into part of a
``comprehensive national plan to provide universal health insurance
coverage.'' \1683\ By contrast, the Department's Title IX regulations
do not expand or stray from the original purpose and scope of the Title
IX statute enacted by Congress. The subject of these final regulations
remains the same as that described in the Title IX statute--ensuring
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. These final regulations do not
expand the category of persons protected under Title IX (i.e., any
person in the United States participating in or benefiting from an
education program or activity). As discussed elsewhere in this
preamble, the final regulations adopt and adapt the Supreme Court's
interpretation of Title IX recognizing sexual harassment as a form of
sex discrimination. Furthermore, the Department's Title IX regulations
have, for decades, required recipients to adopt and publish grievance
procedures for the prompt and equitable resolution of complaints of sex
discrimination. Thus, the final regulations are akin to the Medicaid
program amendments acknowledged by the Sebelius Court to have
constituted an appropriate exercise of Spending Clause authority,\1684\
rather than the ``transformation'' of Title IX into coverage of
subjects outside the scope of the original statute or an expansion of
Title IX obligations ``in kind'' rather than ``in degree.''
---------------------------------------------------------------------------
\1680\ Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519,
535-36 (2012) (affirming that States have general police powers).
\1681\ Id. at 536-37 (analyzing the Affordable Care Act under
Congress's enumerated powers to regulate interstate commerce and
``tax and spend'' and noting that the latter authority gives ``the
Federal Government considerable influence even in areas where it
cannot directly regulate.'').
\1682\ Id. at 583 (``The Medicaid expansion, however,
accomplishes a shift in kind, not merely degree. The original
program was designed to cover medical services for four particular
categories of the needy: The disabled, the blind, the elderly, and
needy families with dependent children. See 42 U.S.C. 1396a(a)(10).
Previous amendments to Medicaid eligibility merely altered and
expanded the boundaries of these categories. Under the Affordable
Care Act, Medicaid is transformed into a program to meet the health
care needs of the entire nonelderly population with income below 133
percent of the poverty level. It is no longer a program to care for
the neediest among us, but rather an element of a comprehensive
national plan to provide universal health insurance coverage.'').
\1683\ Id. at 583-84.
\1684\ Id. at 583 (noting previous amendments affecting, and
expanding, the Medicare program that constituted an expansion ``in
degree'' and not ``in kind'').
---------------------------------------------------------------------------
The NPRM provided that this regulatory action does not unduly
interfere with State, local, or tribal governments in the exercise of
their governmental functions.\1685\ For example, the NPRM acknowledged
that when a party is a minor, has been appointed a guardian, is
attending an elementary or secondary school, or is under the age of 18,
recipients have discretion to look to State law and local educational
practice in determining whether the rights of the party shall be
exercised by the parent(s) or guardian(s) instead of or in addition to
the party.\1686\ The final regulations set forth this proposition more
clearly in Sec. 106.6(g). These final regulations also provide
significant flexibility to recipients; for example, the final
regulations in Sec. 106.30 expressly provide that the Assistant
Secretary will not require recipients to adopt a particular
[[Page 30460]]
definition of consent with respect to sexual assault, such that States
are free to prescribe a definition of consent for use in sexual assault
cases in educational institutions without conflict with these final
regulations. Similarly, these final regulations do not prohibit
recipients from addressing conduct that is not covered under these
final regulations, such that States are free to require recipients to
address conduct that, for instance, did not occur in an education
program or activity, or that does not meet the Sec. 106.30 definition
of sexual harassment. Finally, the NPRM also ``encouraged State and
local elected officials to review and provide comments on the[ ]
proposed regulations,'' and the Department has carefully considered and
responded to such comments.\1687\
---------------------------------------------------------------------------
\1685\ 83 FR 61484.
\1686\ 83 FR 61482.
\1687\ 83 FR 61495.
---------------------------------------------------------------------------
Recipients do not need to choose between Federal financial
assistance and protecting students' equal access to their education
because these final regulations help ensure that students have equal
access to a recipient's education program or activity. For example,
Sec. 106.44(a) requires a recipient to treat complainants and
respondents equitably by offering supportive measures as defined in
Sec. 106.30 to a complainant, and 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 as defined in Sec. 106.30, against a respondent. Supportive
measures are designed to restore or preserve equal access to the
recipient's education program or activity without unreasonably
burdening the other party. Where a respondent is found responsible for
sexually harassing a complainant, the recipient must effectively
implement remedies for the complainant, which must be designed to
restore or preserve equal access to the recipient's education program
or activity, pursuant to Sec. 106.45(b)(1)(i) and Sec.
106.45(b)(7)(iv).
Changes: None.
Comments: Many commenters identified substantive areas of potential
conflict between State and local laws and the NPRM. Commenters noted
that Illinois law requires Illinois IHEs to address, investigate, and
resolve sexual misconduct complaints regardless of location; whereas
the NPRM only applies to conduct within an education program or
activity against a person in the United States. New Jersey law
explicitly includes harassment occurring online and in certain off-
campus locations.
A few commenters generally asserted that the proposed rules
appeared to be inconsistent with other laws such as the Clery Act and
VAWA. Other commenters argued that conflict regarding geographical
application may also arise under VAWA and the Clery Act. One commenter
stated that the NPRM may conflict with VAWA and the Clery Act regarding
evidentiary standards.
Some commenters noted that States such as California, Connecticut,
Illinois, and New Mexico have laws requiring that school disciplinary
boards use the preponderance of the evidence standard to evaluate
sexual misconduct on campus. One commenter asserted that applying the
same standard of evidence for complaints against students as it does
for complaints against employees, including faculty, is problematic
because the Connecticut General Statutes require that for cases of
sexual assault, stalking, and intimate partner violence, the
institution must use the preponderance of the evidence standard.
Additionally, one commenter stated that Connecticut requires
``affirmative consent.''
One commenter generally argued that the NPRM would undermine State
efforts to require or encourage schools to provide more robust
supportive measures to students. This commenter did not explain
further. One commenter stated that the NPRM would preempt State laws
that include broader sexual harassment definitions, such as New Jersey
law.
Commenters raised the issue that Illinois law prohibits parties
from cross-examining each other and permits only indirect questioning
at the presiding school officials' discretion, whereas the proposed
rules require cross-examination through advisors. One commenter also
argued that this provision conflicts with or is inconsistent with
Illinois State law Preventing Sexual Violence in Higher Education, 110
ILCS 155, which requires all higher education institutions in Illinois
to adopt a comprehensive policy concerning sexual violence, domestic
violence, dating violence, and stalking consistent with governing
Federal and State law, regarding the standard of evidence because
Illinois State law requires use of the preponderance of the evidence
standard to determine whether the alleged violation of the
comprehensive policy occurred.\1688\ Another commenter expressed
concern about providing documentation to both parties as part of the
grievance process and noted that such a provision conflicts with
practices in Illinois courts where the State prevents the reporting
party from providing the defendant with a copy of a police report, and
the police report can only be provided to an attorney due to safety
concerns.
---------------------------------------------------------------------------
\1688\ 110 Ill. Comp. Stat. 155/25(5).
---------------------------------------------------------------------------
One commenter asserted that in Kentucky, evidence offered to
provide that the reporting party engaged in other sexual behavior or
evidence offered to prove the reporting party's sexual disposition is
inadmissible and opined that allowing this type of evidence to be
introduced within a Title IX proceeding is a clear conflict between the
proposed rules, and State law.
Commenters asserted substantive conflicts with State law may arise
regarding grievance procedures under the proposed rules, including with
respect to privacy protections, equal opportunity for the parties to
inspect and review evidence, admissibility of past sexual history, and
the presumption of non-responsibility.
One commenter opined that it would be confusing for school and
university officials to conform to Federal regulations that conflict
with local and State laws.
Discussion: For some of the State laws that the commenters cited
(such as Illinois and New Jersey laws that may include sexual
misconduct complaints of conduct that occurs outside of an education
program or activity, State laws encouraging more robust supportive
measures, and the broader definition of sexual harassment in New
Jersey's law), there is no actual conflict because nothing in these
final regulations prohibits a recipient from complying with these
particular State laws. For example, if a State law contains stricter
requirements such as stricter reporting requirements and timelines, and
also addresses anti-bullying, then there is no inherent conflict with
these final regulations. Similarly, if a State law requires a recipient
to investigate and address conduct that these final regulations do not
address, then these final regulations do not prevent a recipient from
doing so. Indeed, the Department revised Sec. 106.45(b)(3)(i), which
concerns mandatory dismissals, to expressly state that such a dismissal
is only for Title IX purposes and does not preclude action under
another provision of the recipient's code of conduct. Accordingly,
recipients may continue to respond to conduct even if Title IX and
these implementing regulations do not require a recipient to do so.
Similarly, the Department revised the definitions in Sec. 106.30 to
address ``Consent,'' and Sec. 106.30 expressly states that the
[[Page 30461]]
Assistant Secretary will not require recipients to adopt a particular
definition of consent with respect to sexual assault and, thus, there
is no conflict with any State law that requires a particular definition
of consent with respect to sexual assault.
The Department disagrees that these final regulations conflict with
State laws that require the use of the preponderance of the evidence
standard because recipients are free to adopt the preponderance of the
evidence standard under these final regulations. There also is nothing
problematic with requiring that the same standard be used for
complaints against employees as complaints against students. Indeed, if
a State's laws require institutions to use a preponderance of the
evidence standard, then using that same standard for complaints against
employees as complaints against students may level the field when a
student files a formal complaint against an employee. Students should
not be subject to a higher burden of proof for complaints against
employees than complaints against students, especially as the power
dynamic is typically skewed in favor of an employee in these
circumstances.
With respect to the Illinois law requiring higher education
institutions to adopt policies, no conflict appears to exist because,
as the commenter explains, such policies must be consistent with
Federal law, which includes these final regulations. Also, with respect
to Illinois law, these final regulations do not require the parties to
directly cross-examine each other; instead, the cross-examination is
conducted by a party's advisor and personal questioning by one party of
another is expressly prohibited under Sec. 106.45(b)(6)(i). These
final regulations also do not appear to conflict with court practices
in Illinois regarding sharing documents with complainants and
respondents. The commenter appears to reference a practice by Illinois
courts and does not indicate that the State mandates that postsecondary
institutions or elementary and secondary schools comply with a court
practice to provide documents to an attorney rather than to a
defendant. To the extent that these final regulations present an
actual, direct conflict with Illinois State law, then these final
regulations preempt State law pursuant to Sec. 106.6(h). A recipient
may choose not to accept Federal financial assistance, if the recipient
does not wish to be subject to Title IX and these final regulations.
The Department notes that these final regulations provide a robust
rape shield provision in Sec. 106.45(b)(6)(i)-(ii) that provides:
``Questions and evidence about the complainant's sexual predisposition
or prior sexual behavior are not relevant, unless such questions and
evidence about the complainant's prior sexual behavior are offered to
prove that someone other than the respondent committed the conduct
alleged by the complainant, or if the questions and evidence concern
specific incidents of the complainant's prior sexual behavior with
respect to the respondent and are offered to prove consent.'' To the
extent that this rape shield provision directly conflicts with Kentucky
State law, then these final regulations preempt State law.
To generally address commenters' questions about preemption and for
the reasons explained above, the Department has added Sec. 106.6(h)
which provides that to the extent of a conflict between State or local
law and Title IX as implemented by Sec. Sec. 106.30, 106.44, and
106.45, the obligation to comply with Sec. Sec. 106.30, 106.44, and
106.45 is not obviated or alleviated by any State or local law.
These final regulations do not conflict with the Clery Act and VAWA
or the Department's regulations implementing the Clery Act and VAWA, in
any aspect, including with respect to geographic requirements and the
standard of evidence. If the Department interprets these final
regulations as consistent with the Clery Act and VAWA, then recipients
that are subject to these final regulations must be able to comply with
these final regulations as well as the Department's regulations
implementing the Clery Act and VAWA. The Department addresses comments
about the Clery Act in the ``Clery Act'' subsection of the
``Miscellaneous'' section. These final regulations do not conflict with
the Clery Act, as amended by VAWA, and even incorporate the definitions
of ``dating violence,'' ``domestic violence,'' and ``stalking'' in VAWA
as part of the definition of sexual harassment in Sec. 106.30.
Recipients have been able to navigate the art of complying with
numerous Federal regulations promulgated by various executive agencies
while also complying with State laws. School and university officials
will determine how to comply with the State and Federal legal
obligations. The Department will provide technical assistance with
respect to the obligations under these Federal regulations.
Changes: None.
Comments: Many commenters contended that there would be negative
consequences from conflicts between the NPRM and other Federal and
State law. Commenters argued against imposing a one-size-fits-all
approach, given the vast diversity among recipients in terms of size,
resources, missions, and communities, and urged the Department to give
recipients flexibility to tailor their own systems. Commenters
expressed concern that the interaction between the NPRM and FERPA, the
Clery Act, Title VI, and Title VII may be confusing and unclear.
One commenter generally argued the NPRM would provide narrower
protections and preempt many State anti-harassment laws, which would
unfairly benefit respondents over complainants. Another commenter
stated that the Department is jeopardizing recipients' access to State
funding because schools would be in an impossible position of having to
comply with both State and Federal law. Commenters emphasized the
widespread nature of the NPRM's conflict with State laws across the
country including laws in at least ten States, arguing that these
conflicts could chill reporting, pose enforcement problems, impose
additional cost burdens, and prompt lengthy litigation battles. One
commenter asserted that the NPRM is so overly prescriptive that it
would be difficult for institutions of higher education to
simultaneously comply with it and the State of Washington's
Administrative Procedure Act (Washington's APA) which, among other
things, requires the presiding officer to be free of bias, prejudice,
or other interest in the case, permits representation, contains notice
procedures, allows the opportunity to respond and present evidence and
argument, permits cross-examination, prohibits ex parte communications
with the decision-maker, prohibits the investigator from being the
presiding officer at the hearing, requires written orders, and permits
appeal. Another commenter raised similar concerns about what the State
of Washington requires and requested that the Department clarify these
final regulations do not preclude a determination that a recipient's
actions constitute discrimination under State civil rights laws.
Discussion: The Department acknowledges that State laws may impose
different requirements than these final regulations and asserts that in
most circumstances, compliance with both State law and the final
regulations is feasible. State laws that have a different definition of
sexual harassment or require a recipient's response regardless of where
misconduct occurs do not necessarily conflict with the final
regulations. As previously explained, Sec. 106.45(b)(3)(i), concerning
mandatory
[[Page 30462]]
dismissals of formal complaints, expressly provides that such a
dismissal is only for Title IX purposes and does not preclude action
under another provision of the recipient's code of conduct.
Accordingly, recipients are free to respond to conduct that these final
regulations do not address.
Similarly, the requirements in Washington's APA, as described by
the commenter, do not conflict with and may complement these final
regulations. The requirements that the commenter describes in
Washington's APA actually mirror many of the requirements in these
final regulations. For example, the final regulations require the Title
IX Coordinator, investigator, and decision-maker to be free from bias
and conflicts of interest just as Washington's APA requires the
presiding officer to be free of bias, prejudice, or other interest in
the case. The final regulations allow the parties to have an advisor
(who may be, but is not required to be, an attorney), and Washington's
APA permits representation. Both these final regulations and
Washington's APA contain notice procedures, allow the opportunity to
respond and present evidence and argument, permit cross-examination,
prohibit the investigator from also being a decision-maker, and permit
appeal.
We seek to provide recipients flexibility to tailor their systems
as they see fit where we believe such flexibility is appropriate. These
final regulations do not preclude a State from determining whether a
recipient's actions constitute discrimination under State civil rights
laws. To generally address commenters' questions about preemption and
for the reasons explained above, the Department has added Sec.
106.6(h) which provides that to the extent of a conflict between State
or local law and Title IX as implemented by Sec. Sec. 106.30, 106.44,
and 106.45, the obligation to comply with Sec. Sec. 106.30, 106.44,
and 106.45 is not obviated or alleviated by any State or local law.
In various sections of this preamble, we explain how these final
regulations are consistent with FERPA and other Federal statutory
provisions.\1689\
---------------------------------------------------------------------------
\1689\ E.g., the ``Section 106.6(e) FERPA'' subsection and the
``Section 106.6(f) Title VII and Directed Question 3 (Application to
Employees)'' subsection of the ``Clarifying Amendments to Existing
Regulations'' section of this preamble.
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters argued the NPRM may exceed the
Department's authority under Title IX and the Administrative Procedure
Act (``APA''). A few commenters argued the NPRM is inconsistent with
Title IX and its legislative purpose. This commenter requested that the
Department not move forward with the proposed regulations until it
publishes a substantive analysis addressing federalism and conflict of
law issues created by it. This commenter also noted that the
constitutional authority for Title IX could be either or both the
Spending Clause and the Fourteenth Amendment. According to this
commenter, the Fourteenth Amendment does not require a recipient to
consent to conditions and, thus, reliance on such consent is misplaced
to mitigate federalism concerns. However, this commenter cited case law
suggesting that preemption and federalism analyses vary depending on
which authority the Department is invoking. This commenter urged the
Department to prove it has not exceeded its authority in issuing the
proposed regulations.
Discussion: Throughout the preamble and specifically in the
``Miscellaneous'' section (e.g., ``Executive Orders and Other
Requirements,'' ``Length of Public Comment Period/Requests for
Extension,'' ``Conflicts with First Amendment, Constitutional
Confirmation, and International Law,'' ``Different Standards for Other
Harassment,'' and ``Spending Clause'' subsections) the Department has
thoroughly explained why it believes the final regulations are
consistent with the APA \1690\ and other Federal statutes. The
Department adhered to the notice-and-comment rulemaking process
required under the APA. The Department also already noted that with
respect to these final regulations' relationship with State law, the
final regulations are not an unfunded mandate that implicate federalism
and conflict of law issues, but rather condition Federal financial
assistance on compliance with these final regulations. To generally
address commenters' questions about preemption and for the reasons
explained above, the Department has added Sec. 106.6(h) which provides
that to the extent of a conflict between State or local law and Title
IX as implemented by Sec. Sec. 106.30, 106.44, and 106.45, the
obligation to comply with Sec. Sec. 106.30, 106.44, and 106.45 is not
obviated or alleviated by any State or local law.
---------------------------------------------------------------------------
\1690\ 5 U.S.C. 701 et seq.
---------------------------------------------------------------------------
The Department agrees that these final regulations could be
justified under the Federal government's Fourteenth Amendment
authority, in addition to the straightforward Spending Clause
authority. The Fourteenth Amendment's Enforcement Clause, in Sec. 5 of
the Amendment, authorizes the Federal government to enforce it by
appropriate legislation. That power includes ``the authority both to
remedy and to deter violation of rights guaranteed [by the Fourteenth
Amendment] by prohibiting a somewhat broader swath of conduct,
including that which is not itself forbidden by the Amendment's text.''
\1691\ The Supreme Court often has stated that ``Congress may enact so-
called prophylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional conduct.''
\1692\ ``Legislation which deters or remedies constitutional violations
can fall within the sweep of Congress's enforcement power even if in
the process it prohibits conduct which is not itself unconstitutional
and intrudes into legislative spheres of autonomy previously reserved
to the States.'' \1693\ In Hibbs, in which the Supreme Court considered
whether a male State employee could recover money damages against the
State because of its failure to comply with the family-care leave
provision of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.
2601 et seq., the Court upheld the FMLA as a legitimate exercise of
Congress's Sec. 5 power to combat unconstitutional sex discrimination,
``even though there was no suggestion that the State's leave policy was
adopted or applied with a discriminatory purpose that would render it
unconstitutional'' under the Equal Protection Clause.\1694\ The Court
explained that when the Federal government seeks to remedy or prevent
discrimination on the basis of sex ``Sec. 5 authorizes it to enact
prophylactic legislation proscribing practices that are discriminatory
in effect, if not in intent, to carry out the basic objectives of the
Equal Protection Clause'' including in the sphere of private
discrimination.\1695\ After all, the Fourteenth Amendment's enforcement
power is a ``broad power indeed.'' \1696\ These final regulations could
thus be justified under this power, in addition to the Federal
government's Spending Clause powers.\1697\ And in all events, these
regulations are consistent with the APA,
[[Page 30463]]
Title IX, and other Federal statutory provisions.
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\1691\ Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000).
\1692\ Nev. Dep't. of Human Resources v. Hibbs, 538 U.S. 721,
727-728 (2003).
\1693\ Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976)
(citations and internal quotation marks omitted).
\1694\ Tennessee v. Lane, 541 U.S. 509, 519-20 (2004) (emphasis
added).
\1695\ Id. at 520.
\1696\ Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732 (1982).
\1697\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 637
(1999); South Dakota v. Dole, 483 U.S. 203 (1987).
---------------------------------------------------------------------------
Changes: None.
Comments: A number of commenters asserted that informal resolution
under the NPRM would conflict with State law. Commenters argued that
the NPRM's conflicts with State law regarding mediation could trigger
enforcement problems, cause confusion for recipients and students,
impose additional cost burdens, and prompt lengthy litigation.
Discussion: The final regulations allow but do not require
recipients to provide an informal resolution process pursuant to Sec.
106.45(b)(9). If State law prohibits informal resolution, then a
recipient does not need to offer an informal resolution process.
Additionally, Sec. 106.45(b)(9) provides that a recipient may not
require the parties to participate in an informal resolution process.
The Department believes that Sec. 106.45(b)(9) leaves substantial
flexibility with recipients as to whether to adopt informal resolution
processes and how to structure and administer such processes,
decreasing the likelihood that a recipient's compliance with these
final regulations causes conflict with the recipient's compliance with
any State law addressing mediations for campus sexual assault.
To generally address commenters' questions about preemption and for
the reasons explained above, the Department has added Sec. 106.6(h)
which provides that, to the extent of a conflict between State or local
law and Title IX as implemented by Sec. Sec. 106.30, 106.44, and
106.45, the obligation to comply with Sec. Sec. 106.30, 106.44, and
106.45 is not obviated or alleviated by any State or local law.
Changes: None.
Section 106.8(a) Designation of Coordinator
Comments: Several commenters expressed general support for Sec.
106.8(a), noting that it codifies good practices already implemented at
many schools, standardizes the importance of the Title IX Coordinator's
role, and explicitly clarifies the independent compliance and
investigatory responsibilities of the Title IX office. One commenter
specifically appreciated the addition of the Title IX Coordinator's
email address to the required notification, and another appreciated
that this provision requires institutions to specify the Title IX
Coordinator's ``name or title'' because recipients experience high
turnover rates in the position of Title IX Coordinator. At least one
commenter appreciated that this provision allows the Title IX
Coordinator to delegate responsibilities to other staff members
including the responsibility for implementing supportive measures.
Some commenters requested clarification that Title IX Coordinators
can delegate certain responsibilities or play more of a coordinating
role rather than a direct role in certain circumstances. Many of these
commenters asserted that the current regulations provide for this
interpretation, but that proposed Sec. 106.8(a) did not afford the
same flexibility to Title IX Coordinators. For instance, commenters
asked whether a Title IX Coordinator's delegated employee can evaluate
reports to determine whether they are covered by Title IX, determine
which reports require formal proceedings, coordinate responses to all
reports, or sign formal complaints on behalf of the Title IX
Coordinator. Some commenters asked the Department to include an express
list of nondelegable functions which the Title IX Coordinator must
carry out personally.
Some commenters recommended that the Department add language
requiring a minimum standard of ``at least one full-time, dedicated''
employee for recipients with student populations under 10,000, and for
recipients with student populations over 10,000 to employ one full-time
Title IX Coordinator, at least one full-time investigator, and a full-
time administrative assistant to ensure minimum capacity. Several
commenters suggested that more than one Title IX Coordinator may be
necessary to fulfill all the required functions of the office, further
suggesting that the number of Title IX Coordinators or size of the
office should be proportionate to the size of the student body. One
commenter stated that Sec. 106.8(a) made the Title IX Coordinator more
inaccessible and invisible to complainants because it situated the
Title IX Coordinator as an administrator at the school district level.
Some commenters suggested that the Department should provide
additional financial resources to institutions so that institutions can
develop a more efficient and decentralized Title IX office under the
direction of the Title IX Coordinator.
Discussion: We appreciate the comments received in support of Sec.
106.8(a). Based on the widespread use by commenters of the term ``Title
IX Coordinator,'' the Department revised this provision to specifically
label the employee designated under Sec. 106.8(a) as the ``Title IX
Coordinator,'' specify that recipients must refer to that person as the
``Title IX Coordinator,'' and we use that label throughout the final
regulations. Uniformity in the label by which the person designated in
Sec. 106.8(a) is referred will further the Department's interest in
ensuring that students in schools, colleges, and universities know that
notifying their school's ``Title IX Coordinator'' triggers their
school's legal obligations to respond to sexual harassment under these
final regulations. The final regulations require recipients to identify
the designated individual by the official title, ``Title IX
Coordinator,'' as well as require recipients to notify students and
employees (and others) of the electronic mail address of the Title IX
Coordinator, in addition to providing their office address and
telephone number, to better ensure that students and employees have
accessible options for contacting a recipient's Title IX
Coordinator.\1698\ We have also revised Sec. 106.8(a) to state that
the recipient must not only designate but also ``authorize'' at least
one Title IX Coordinator, to further reinforce that a recipient's Title
IX Coordinator (and/or any deputy Title IX Coordinators or other
personnel to whom a Title IX Coordinator delegates tasks) must be
authorized to coordinate the recipient's obligations under these final
regulations. Nothing in the final regulations restricts the tasks that
a Title IX Coordinator may delegate to other personnel, but the
recipient itself is responsible for ensuring that the recipient's
obligations are met, including the responsibilities specifically
imposed on 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.\1699\
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\1698\ We have also revised Sec. 106.8(a) to expressly provide
that every person has clear, accessible reporting channels to the
Title IX Coordinator, by stating that any person may report sexual
harassment (whether or not the person reporting is the person
alleged to be the victim of conduct that could constitute sexual
harassment), in person, by mail, by telephone, or by email, using
the listed contact information for the Title IX Coordinator (or by
any other means that results in the Title IX Coordinator receiving
the person's verbal or written report), and that a report may be
made at any time (including during non-business hours) by using the
listed telephone number or email address, or by mail to the listed
office address.
\1699\ For example, under Sec. 106.44(a) the recipient must
respond to sexual harassment promptly in a non-deliberately
indifferent manner, and as part of this obligation the recipient's
Title IX Coordinator must promptly contact the complainant to
discuss the availability of supportive measures, consider the
complainant's wishes with respect to supportive measures, inform the
complainant of the availability of supportive measures with or
without the filing of a formal complaint, and explain to the
complainant the process for filing a formal complaint.
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[[Page 30464]]
Nothing in the final regulations precludes a recipient from
designating multiple Title IX Coordinators, nor from designating
``deputy'' or ``assistant'' coordinators to whom a Title IX Coordinator
delegates responsibilities, nor is a Title IX Coordinator prevented
from working with other administrative offices and personnel within a
recipient institution in order to ``coordinate'' the recipient's
efforts to comply with Title IX. Ultimately, the recipient itself is
responsible for compliance with obligations under Title IX and these
final regulations, and Sec. 106.8(a) requires at least one recipient
employee to serve as a Title IX Coordinator. If a recipient enrolls so
many students that a single Title IX Coordinator is unable to
coordinate the recipient's Title IX compliance then the recipient may
need to hire additional personnel, but the Department declines to
require that result. The Department's interest is in the recipient's
compliance with Title IX obligations, but the Department desires to
leave recipients as much flexibility as possible to decide how to
achieve compliance so that a recipient's funds and resources are most
efficiently allocated to achieve fulfilment of a recipient's Title IX
obligations as well as a recipient's educational purpose and mission.
Similarly, the Department declines to mandate that recipients with
larger student populations employ more Title IX staff or that a Title
IX Coordinator must be a full-time or dedicated position. The
Department does not wish to prescribe a recipient's administrative or
personnel affairs; the Department's interest is in prescribing each
recipient's obligations under Title IX. To emphasize that the
recipient's Title IX Coordinator must not be designated ``in name
only'' to merely technically comply with this provision, we have
revised Sec. 106.8(a) to state that the recipient must designate ``and
authorize'' a Title IX Coordinator to coordinate the recipient's
efforts to comply with Title IX.
The Department recognizes that the position of Title IX Coordinator
tends to be a high-turnover position, and that this creates challenges
for recipients and their educational communities.\1700\ We believe that
revisions to Sec. 106.8(a) in these final regulations help ensure that
a recipient provides constant access to a Title IX Coordinator, without
forcing recipients to divert educational resources to Title IX
personnel unless the recipient has determined that the recipient needs
additional personnel in order to fulfill the recipient's Title IX
obligations.
---------------------------------------------------------------------------
\1700\ E.g., Sarah Brown, Life Inside the Title IX Pressure
Cooker, Chronicle of Higher Education (Sept. 5, 2019) (``Nationwide,
the administrators who are in charge of dealing with campus sexual
assault and harassment are turning over fast. Many colleges have had
three, four, or even five different Title IX coordinators in the
recent era of heightened enforcement, which began eight years ago.
Two-thirds of Title IX coordinators say they've been in their jobs
for less than three years, according to a 2018 survey by the
Association of Title IX Administrators, or ATIXA, the field's
national membership group. One-fifth have held their positions for
less than a year.''); Jacquelyn D. Wiersma-Mosley & James DiLoreto,
The Role of Title IX Coordinators on College and University
Campuses, 8 Behavioral. Sci. 4 (2018) (finding that most Title IX
Coordinators have fewer than three years of experience, and
approximately two-thirds are employed in positions in addition to
serving as the Title IX Coordinator).
---------------------------------------------------------------------------
The Department disagrees that proposed Sec. 106.8(a) modified
existing 34 CFR 106.8(a) in any manner that would result in the Title
IX Coordinator being less accessible to students because a recipient's
Title IX Coordinator may be a single coordinator for an entire school
district; the existing regulations, proposed regulations, and final
regulations consistently and appropriately recognize that Title IX
governs each ``recipient'' \1701\ of Federal financial assistance which
``operates an education program or activity,'' \1702\ not each
individual school building. In order to better address the
accessibility of a recipient's Title IX Coordinator for all students
(as well as employees and others), we have revised Sec. 106.8(a) in
these final regulations to expressly provide that any person may use
the Title IX Coordinator's contact information (which must include an
office address, telephone number, and email address) to report sexual
harassment. Therefore, even if the Title IX Coordinator's office
location is in an administrative building that is not easily accessible
to all students, any person may contact the Title IX Coordinator (in
person, by mail, telephone, or email) including in ways that allow
reporting during non-business hours (i.e., by mail, telephone, or
email).\1703\ Furthermore, if a recipient designates or authorizes
employees to serve as deputy or assistant Title IX Coordinators
(perhaps with the goal of having Title IX office personnel located on
various satellite campuses, or in individual school buildings, to make
Title IX personnel more accessible to students), then such employees
are officials with authority to institute corrective measures on behalf
of the recipient \1704\ and notice to such employees conveys actual
knowledge to the recipient, requiring the recipient's prompt response
under Sec. 106.44(a).
---------------------------------------------------------------------------
\1701\ 34 CFR 106.2(i) (defining ``recipient'').
\1702\ 34 CFR 106.2(i) (defining ``recipient''); 34 CFR 106.2(h)
(defining ``program or activity'').
\1703\ We have added Sec. 106.71 prohibiting retaliation
against any individual for exercising rights under Title IX, and we
emphasize that any person has the right to report sexual harassment
to the recipient's Title IX Coordinator. Thus, for example, a
recipient may not intimidate, threaten, coerce, or discriminate
against an employee who reports sexual harassment allegations
(whether as the alleged victim or as a third party) to the Title IX
Coordinator, even if the recipient's code of conduct or employment
policies state that such an employee is not permitted to report
directly to the Title IX Coordinator (e.g., states that such an
employee must only report ``up'' the employee's chain of command.)
\1704\ Section 106.30 (defining ``actual knowledge'' to include
notice to any official of the recipient who has authority to
institute corrective measures on behalf of the recipient).
---------------------------------------------------------------------------
If the Title IX Coordinator is located in an administrative office
or building that restricts, or impliedly restricts, access only to
certain students (e.g., a women's center), such a location could
violate Sec. 106.8(a) by not ``authorizing'' a Title IX Coordinator to
comply with all the duties required of a Title IX Coordinator under
these final regulations (for example, a Title IX Coordinator must
intake reports and formal complaints of sexual harassment from any
complainant regardless of the complainant's sex).
These final regulations are focused on clarifying recipients' legal
obligations under Title IX and do not address grants or funding that a
recipient might use to hire Title IX personnel.
We have revised Sec. 106.8, for clarity and ease of reference, by
describing the group of individuals and entities entitled to receive
notice of the recipient's non-discrimination policy, and notice of the
recipient's Title IX Coordinator's contact information, in paragraph
(a) rather than (as in the NPRM) in Sec. 106.8(b)(1); thus, in
provisions such as Sec. 106.8(b)(2) reference is made to ``persons
entitled to a notification under paragraph (a)'' rather than the NPRM's
reference to ``persons entitled to a notification under paragraph
(b)(1).'' We have further revised Sec. 106.8(a) by requiring reference
to the recipient's employee(s) designated to coordinate the recipient's
Title IX responsibilities as the recipient's ``Title IX Coordinator,''
and references throughout Sec. 106.8 (and throughout the entirety of
these final regulations), including Sec. 106.8(b)(1), now reference
the ``Title IX Coordinator'' instead of ``the employee designated
pursuant to paragraph (a).'' We have further revised Sec.
106.8(b)(2)(i) to require the recipient to prominently display the
contact information required to be listed for the Title IX Coordinator
under paragraph (a) of this section, and the notice of non-
discrimination
[[Page 30465]]
described in paragraph (b)(1) of this section, on the recipient's
website, if any, and in each handbook or catalog that the recipient
makes available to persons entitled to a notification under Sec.
106.8(a).
Changes: We have revised Sec. 106.8(a) to clarify that the
individual designated by the recipient is referred to as the ``Title IX
Coordinator'' and added that the Title IX Coordinator must not only be
designated but also ``authorized'' to coordinate the recipient's Title
IX obligations. We have moved the list of persons whom a recipient must
notify of the recipient's non-discrimination policy, and of the Title
IX Coordinator's contact information, to Sec. 106.8(a) rather than
listing those persons in Sec. 106.8(b)(1). We have revised Sec.
106.8(a) to state that any person may report sex discrimination,
including sexual harassment (whether or not the person reporting is the
person alleged to be victimized by sex discrimination or sexual
harassment) by using the listed contact information for the Title IX
Coordinator, and stating that such a report may be made at any time
(including during non-business hours) by using the telephone number or
email address, or by mail to the office address, listed for the Title
IX Coordinator. We have revised Sec. 106.8(b)(2)(i) to require the
recipient to prominently display on the recipient's website the Title
IX Coordinator's contact information required to be listed under Sec.
106.8(a), as well as the recipient's notice of non-discrimination
required under Sec. 106.8(b)(1).
Section 106.8(b) Dissemination of Policy
Removal of 34 CFR 106.9(c)
Comments: Some commenters discussed the removal of 34 CFR 106.9 and
the way the Department incorporated, but modified, provisions found in
34 CFR 106.9 into the final regulations at Sec. 106.8(b). One
commenter stated that for elementary and secondary schools, which are
not subject to subpart C of the current part 106 (admissions and
recruitment) and which do not solicit applicants for admission,
proposed Sec. 106.8(b) created confusion as to how to implement such a
provision. The commenter believed that notice on the recipient's
website would be sufficient notice to stakeholders within the
recipient's community.
Some commenters objected to removing the requirement in 34 CFR
106.9 that recipients take specific, continuing steps to notify
specified people of the recipient's non-discrimination policy, and
removal of the requirement that recipients distribute publications
without discrimination on the basis of sex. Some commenters noted the
Department expected that the availability of websites would address the
removal of ``taking continuing steps'' but these commenters were not
convinced that posting on websites achieves the same purpose. Other
commenters asserted that changing the language around publications is
not sufficient to ensure, as 34 CFR 106.9(c) did, that publications
will be distributed without discrimination on the basis of sex. One
commenter asserted that for example, under 34 CFR 106.9(c) a school
district could not send school catalogs to parents of girls but not
parents who have only boys, yet this would be allowed under the NPRM.
At least one commenter stated that the Department failed to mention
or justify the removal of the requirement to train recruiters on its
non-discrimination policy, which the commenter argued is an important
requirement to ensure that such a policy is not diluted in the field.
One commenter generally expressed that 34 CFR 106.9 contains important
mechanisms to prevent discrimination based on sex and their removal
only makes Title IX protections weaker.
Discussion: The Department appreciates commenters' support for, and
other commenters' concerns about, removing 34 CFR 106.9 and
incorporation of many of its provisions into Sec. 106.8(b). As
discussed further below, the Department believes that Sec. 106.8(b)
now more clearly and reasonably describes recipients' obligations to
notify its educational community of a recipient's obligation not to
engage in sex discrimination under Title IX. The Department appreciates
commenters' concerns that requiring the recipient's non-discrimination
policy to be posted on a recipient's website is not the same as
requiring notice to each of the categories of persons and organizations
listed under now-removed 34 CFR 106.9(a)(1).\1705\ However, the
Department believes that recipients and their educational stakeholders
should benefit from the technological developments (such as wide use of
websites) that have emerged in the decades since promulgation of Title
IX regulations in 1975, to more efficiently and cost-effectively
communicate important notices, including the required notice of non-
discrimination. The Department believes that Sec. 106.8(b)(1) now
appropriately requires recipients to notify an appropriately broad list
of persons and organizations of, as well as to post on its website and
in handbooks and catalogs (in Sec. 106.8(b)(2)), the recipient's non-
discrimination policy (as well as the Title IX Coordinator's contact
information). The Department believes that these requirements
reasonably reduce the burden on recipients to take ``specific and
continuing steps'' to notify relevant persons of the recipient's non-
discrimination policy, without diminishing the goal of ensuring that a
recipient's educational community understands that the recipient has a
policy of non-discrimination in accordance with Title IX (as well as
knowing the contact information for the Title IX Coordinator so that
any person may report sex discrimination, including sexual harassment).
---------------------------------------------------------------------------
\1705\ Now-removed 34 CFR 106.9(a)(1) refers to the following
group of persons: Applicants for admission and employment, students
and parents of elementary and secondary school students, employees,
sources of referral of applicants for admission and employment, and
all unions or professional organizations holding collective
bargaining or professional agreements with the recipient. Section
Sec. 106.8(a) alters this list by removing ``sources of referral of
applicants for admission and employment'' and adding ``legal
guardians'' of elementary and secondary school students.
---------------------------------------------------------------------------
The Department understands commenters' concerns that 34 CFR
106.9(c) specifically prohibited recipients from distributing
publications on the basis of sex. Although similar language does not
appear in Sec. 106.8(b), the Department believes that such language is
not necessary because if a commenter's example did occur (e.g., a
school sent a school catalog only to male students but not to female
students), Title IX already prohibits different treatment on the basis
of sex.
The Department understands a commenter's concern that removing
reference to ``sources of referral'' (language that appears in 34 CFR
106.9(a)) from the group of persons and entities who must be notified
of a recipient's non-discrimination policy could dilute the
understanding of a recipient's non-discrimination policy ``in the
field.'' We disagree, however, that recipients should continue to be
required to send separate notice to all persons who act as recruiters
for a recipient, because such persons are not always easily
identifiable, and will have the benefit of the publicly available
notice that Sec. 106.8(b)(2) requires to be prominently displayed on
each recipient's website. Additionally, 34 CFR 106.51(a)(3) continues
to prohibit a recipient from entering into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to
[[Page 30466]]
discrimination, including ``relationships with employment and referral
agencies'' such that Title IX regulations continue to clearly prohibit
a recipient from indirectly discriminating in employment by, for
instance, working with a referral source that discriminates on the
basis of sex.\1706\ Similarly, 34 CFR 106.21(a) continues to prohibit
recipients from discriminating on the basis of sex with respect to
admissions, and the Department will continue to hold recipients
responsible for sex discriminatory admissions policies and practices
regardless of whether any individual or entity recruits applicants on
the recipient's behalf.
---------------------------------------------------------------------------
\1706\ See also Sec. 106.53(a) (``A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees.'').
---------------------------------------------------------------------------
Changes: To more clearly acknowledge that the reference to
``employment'' in Sec. 106.8(b)(1) is unrelated to the provision's
reference to ``subpart C of this part'' (which applies to admissions),
the word ``employment'' is moved to follow reference to ``subpart C''
instead of appearing as ``admissions and employment'' preceding that
reference. The list of persons whom a recipient must notify of the
recipient's non-discrimination policy has been moved from Sec.
106.8(b)(1) to Sec. 106.8(a) so that Sec. 106.8(b)(1) now references
``persons entitled to a notification under paragraph (a).''
List of Publications
Comments: Some commenters discussed the way that Sec.
106.8(b)(2)(i) changes the provision in removed 34 CFR 106.9(b)(1)
regarding the list of types of publications and other materials where
recipients must publish the recipient's non-discrimination policy
required under Sec. 106.8(b)(1). One commenter supported proposed
Sec. 106.8(b)(2)(i), stating that the provision streamlines the list
of types of publications and asserted that requiring the recipient's
non-discrimination policy to be published on the recipient's website,
and in handbooks and catalogs, is more consistent with the ways
institutions of higher education disseminate important information to
students and employees. The commenter stated that the Department
previously issued guidance on notices of non-discrimination in 2010 and
recommended that if the proposed rules are adopted, the Department
should clarify any parts of the sample notice provided in the 2010
guidance that have changed as a result.
Other commenters opposed these changes. One commenter stated that
the Department failed to provide a reason for why the list of
publications needed to be streamlined or why particular materials were
removed from the list in 34 CFR 106.9(b) (e.g., application
forms).\1707\ The commenter also argued that the Department failed to
explain why it added handbooks to the list and how that item overlaps
or not with items removed from that list, such as announcements and
bulletins. The commenter stated that if the scope of handbooks is the
same as, for instance, announcements and bulletins, then there is no
reason for this change and if it is different than the practical effect
will be to increase burden on recipients because the prior list of
publications and materials remains in the Title IX regulations of 25
other Federal agencies.
---------------------------------------------------------------------------
\1707\ Now-removed 34 CFR 106.9(b)(1) listed the following types
of publications in which a recipient needed to include the
recipient's non-discrimination policy: Announcement, bulletin,
catalog, or application form. Section 106.8(b)(1)(i) removes
reference to announcements, bulletins, and application forms,
retains reference to catalogs, adds handbooks, and Sec.
106.8(b)(2)(i) adds a requirement to post the non-discrimination
policy on the recipient's website, if any.
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' support for, and
concerns regarding, Sec. 106.8(b). The Department streamlined the list
of types of publications that must contain the recipient's non-
discrimination policy (and, under the final regulations, must also
contain the Title IX Coordinator's contact information) because the
Department believes that the items listed in 34 CFR 106.9(b) that do
not appear in Sec. 106.8(b) were superfluous; for example, applicants
for admission are required to receive notification of the recipient's
non-discrimination policy, so including ``application forms'' as a
listed type of publication is unnecessary. As to ``announcements'' and
``bulletins,'' such items lack a clear definition, and as described
below, the Department believes that the streamlined list of types of
publications, combined with the new requirement to post on the
recipient's website, ensures that the recipient's educational community
is aware of the recipient's non-discrimination policy (and Title IX
Coordinator's contact information). The Department added ``handbooks''
and retained ``catalogs'' on the list to reflect the reality of what
types of publications schools most frequently use that ought to contain
the recipient's non-discrimination policy (and Title IX Coordinator's
contact information). In addition, Sec. 106.8(b)(2) requires that the
non-discrimination policy must be posted prominently on the recipient's
website. The Department believes this list of types of publications is
broad enough to achieve the purpose of ensuring that relevant
individuals and organizations (i.e., the list of persons entitled to
notice under Sec. 106.8(a)) see the recipient's non-discrimination
policy on pertinent recipient materials without also retaining
reference to ``announcements,'' ``bulletins'' and ``application forms''
from now-removed 34 CFR 106.9(b)(1). The Department does not agree with
commenters who asserted that the Department is increasing the burden on
recipients because the list of publications in removed 34 CFR
106.9(b)(1) (i.e., announcements, bulletins, catalogs, application
forms) remains in the Title IX regulations of 25 other Federal
agencies. The Department believes that these final regulations
appropriately update relevant Title IX regulations enforced by the
Department regardless of whether other agencies also adopt the same
regulations, and nothing in Sec. 106.8 makes it difficult for a
recipient to comply with other agency regulations.
The Department appreciates a commenter's request to clarify whether
Sec. 106.8 changes anything in the sample notice of non-discrimination
contained in the fact sheet on non-discrimination policies published by
the Department in 2010.\1708\ These final regulations, including Sec.
106.8, apply and control over any statements contained in Department
guidance, and recipients should be aware that the sample notice
contained in that 2010 fact sheet does not require reference to a
``Title IX Coordinator'' or an email address listed for a Title IX
Coordinator, while Sec. 106.8 does require that information.
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\1708\ U.S. Dep't. of Education, Office for Civil Rights, Fact
Sheet, ``Notice of Non-discrimination'' (August 2010), https://www2.ed.gov/about/offices/list/ocr/docs/nondisc.pdf. The 2001
Guidance at 20 encourages recipients to ensure that the school
community has adequate notice of the school's non-discrimination
policy, and of the procedures for filing complaints of sex
discrimination, by having copies available at various locations
throughout the school or campus, including a summary of the
procedures in handbooks and catalogs sent to students and parents,
and identifying personnel who can explain how the procedures work.
These final regulations at Sec. 106.8(b)-(c) similarly require
notice of the recipient's non-discrimination policy, and notice of
the recipient's grievance procedures for complaints of sex
discrimination, and grievance process for formal complaints of
sexual harassment, to members of the recipient's educational
community, as well as the contact information for the Title IX
Coordinator.
---------------------------------------------------------------------------
Changes: We have revised Sec. 106.8(b)(2)(i) to require recipients
to publish on their websites, if any, the contact information for their
Title IX Coordinator required under Sec. 106.8(a).
Professional Organizations
Comments: One commenter objected to the requirement in Sec.
106.8(b)(1) to
[[Page 30467]]
notify professional organizations, asserting that such organizations do
not have much bearing at the elementary and secondary school level. The
commenter further asserted that the proposed rules did not clarify how
to identify appropriate professional organizations, nor whether the
organization has a right of action or standing that warrants the need
to provide it with separate notice. Finally, the commenter stated that
the proposed rules did not clarify whether publishing the recipient's
non-discrimination policy on the recipient's website as required under
Sec. 106.8(b)(2)(i) also fulfils the requirement under Sec.
106.8(b)(1) that the recipient ``must notify'' the group of persons
listed in that provision, which would include any applicable
professional organizations.
Discussion: The Department does not agree that the reference to
``professional organizations'' has little or no bearing in elementary
and secondary schools, because the phrase appears in Sec. 106.8(b)(1)
as part of describing ``all unions or professional organizations
holding collective bargaining agreements or professional agreements
with the recipient'' and the Department believes that the persons and
organizations in this description do have need to receive notice of a
recipient's non-discrimination policy. Whether an organization
describes itself as a ``union'' or uses a different label, the term
``or professional organizations holding collective bargaining
agreements or professional agreements'' encompasses the reality that
many elementary and secondary schools have employees who are unionized
or otherwise collectively bargain or hold professional agreements with
the recipient. Such unions or similar organizations should receive
notice that the recipient does not discriminate under Title IX (and
should receive notice of the recipient's Title IX Coordinator's contact
information), both for the protection of union or similar organization
members as employees of the recipient with rights under Title IX, and
because such employees may have duties and responsibilities flowing
from a recipient's Title IX obligations. For these reasons, the
Department disagrees that ``professional organizations'' should be
removed from the list of persons whom a recipient must notify of the
recipient's non-discrimination policy (and of the Title IX
Coordinator's contact information).
The Department appreciates the opportunity to clarify that posting
the recipient's non-discrimination policy (and the Title IX
Coordinator's contact information) prominently on a recipient's website
(required under Sec. 106.8(b)(2)(i)) does not satisfy the recipient's
obligation to ``notify'' the persons listed in Sec. 106.8(a) (i.e.,
applicants for admission and employment, students, parents or legal
guardians of elementary and secondary school students, employees,
unions and similar organizations) of the non-discrimination policy and
Title IX Coordinator's contact information. These final regulations do
not prescribe a particular form or method by which recipients ``must
notify'' the foregoing group of persons and entities, in recognition
that existing regulations at 34 CFR 106.9(a)(2), which became effective
in 1975 and constituted the Department's first Title IX implementing
regulations, were concerned with prescribing the form of ``initial''
notice (within 90 days after the effective date of the 1975
regulations) of a recipient's non-discrimination policy (and thus
prescribed that notice could occur via publication in local newspapers,
alumni or other recipient-operated newspapers or newsletters, and other
written communications to students and employees). Most recipients have
already complied with the regulatory requirement to send an ``initial''
notice within 90 days of the effective date of the 1975 regulations. As
to every recipient, regardless of when the recipient first becomes
subject to Title IX, the recipient under these final regulations ``must
notify'' the list of persons and entities in Sec. 106.8(a) by some
effective method separate and apart from also complying with Sec.
106.8(b)(2)(i) by posting required information on the recipient's
website.
Changes: None.
Parents of Elementary and Secondary School Students
Comments: Commenters expressed concerns about the removal of
parents of elementary and secondary school students from the list in
proposed Sec. 106.8(b)(1) \1709\ of persons to whom recipients must
send notice of their non-discrimination policy (and Title IX
Coordinator's contact information). Commenters asserted that the
Department did not provide a reason for why the list of individuals and
entities needs to be streamlined, and argued that streamlining the list
will not reduce the burden on school districts because the requirement
to notify parents of elementary and secondary school students remains
in the Title IX regulations of 25 other Federal agencies. Commenters
expressed concern that eliminating parents of elementary and secondary
school students from this list would lead to underreporting of sexual
harassment because if parents are not informed of the school's non-
discrimination policy, parents will be deprived of the tools they need
to protect their children's rights under Title IX.
---------------------------------------------------------------------------
\1709\ As discussed previously, the list of persons whom a
recipient ``must notify'' of the recipient's non-discrimination
policy, and of the Title IX Coordinator's contact information, has
been moved in the final regulations to Sec. 106.8(a) instead of in
proposed Sec. 106.8(b)(1).
---------------------------------------------------------------------------
One commenter was concerned with omitting parents of elementary and
secondary school students from the list in proposed Sec. 106.8(b)(1)
in light of the fact that per the proposed rules, elementary and
secondary school students could be subject to cross-examination and
their parents would not have knowledge of the procedures involved in
reporting sexual harassment. Commenters argued that most elementary and
secondary school students are minors and rely on their parents in
making decisions related to school. Commenters expressed concern that
by removing parents of elementary and secondary school students from
the list, the Department would be placing a large burden on minor
students to be aware of a complex policy regarding sex discrimination.
Commenters argued that the lack of notice to parents limits the
potential for legal remedies because the proposed rules require actual
knowledge of sexual harassment via notice to the Title IX Coordinator
or an official with the authority to institute corrective measures on
behalf of the recipient, and young students cannot be expected to know
how to contact those officials. Commenters asserted that since the
parents of elementary and secondary school students would no longer be
required to receive notice of the non-discrimination policy, children
would have the task of providing notice to these individuals and would
have to understand that what they have experienced is sexual harassment
and feel comfortable sharing the experience with a stranger.
Discussion: The Department is persuaded by commenters' arguments
that streamlining the list of persons who must be notified of the
recipient's non-discrimination policy (described in Sec. 106.8(b)(1))
should not include eliminating ``parents of elementary and secondary
school students'' from that list.\1710\ The Department is further
[[Page 30468]]
persuaded by commenters' concerns that neglecting to include parents on
this list places young students at unnecessary risk of not knowing
their Title IX rights, and not having an effective means of asserting
their rights because their parent has not been notified of the
recipient's non-discrimination policy (and of the Title IX
Coordinator's contact information). Therefore, the final regulations
not only restore ``parents'' to this list, but add ``parents and legal
guardians'' of elementary and secondary school students (emphasis
added), to ensure that a responsible adult with the ability to exercise
rights on behalf of elementary and secondary school students receives
notice of the recipient's non-discrimination policy as well as notice
of the recipient's Title IX Coordinator's contact information. We have
also added Sec. 106.6(g) to these final regulations, to expressly
acknowledge the legal rights of parents and guardians to act on behalf
of individuals with respect to exercise of rights under Title IX,
including but not limited to filing a formal complaint of sexual
harassment.
---------------------------------------------------------------------------
\1710\ As noted above, we have revised Sec. 106.8 to move this
list of persons whom a recipient ``must notify'' of the recipient's
non-discrimination policy and of the recipient's Title IX
Coordinator's contact information to Sec. 106.8(a), such that Sec.
106.8(b)(1) now refers back to the ``persons entitled to a
notification'' listed in Sec. 106.8(a).
---------------------------------------------------------------------------
Changes: The final regulations revise Sec. 106.8(a) to add to the
list of persons receiving notice of the recipient's non-discrimination
policy, and notice of the recipient's Title IX Coordinator's contact
information, ``parents or legal guardians of elementary and secondary
school students.'' We have also added Sec. 106.6(g) to these final
regulations, to expressly acknowledge the legal rights of parents and
guardians to act on behalf of individuals with respect to exercise of
rights under Title IX.
Subjectivity in Publications' Implication of Discrimination
Comments: Several commenters discussed the change in language from
removed 34 CFR 106.9(b)(2) to Sec. 106.8(b)(2)(ii).\1711\ One
commenter expressed support for the change in language. The commenter
stated that 34 CFR 106.9 is not sufficiently detailed to allow a school
to know if a publication meets the Department's standards and may lead
to inconsistency in enforcement across OCR's field offices. Some
commenters opposed the change and asserted that the Department's
rationale for the change in language was to remove subjective
determinations so that the requirement would be clearer for those
enforcing it and for recipients seeking to comply with it but did not
believe more clarity was needed. Some of these commenters asserted that
the Department had yet to respond to a commenter's Freedom of
Information Act (FOIA) request for records about the subjectivity or
lack of clarity in 34 CFR 106.9(b)(2) and argued that once the
Department responds to the FOIA request the Department should reopen
the public comment period to allow for additional evidence and
arguments. Some commenters also contended that the elimination of the
word ``illustration'' from 34 CFR 106.9(b)(2) is contrary to the Title
IX regulations of 25 other Federal agencies (many of whom fund the same
recipients as the Department) and is in tension with regulations issued
by Federal agencies under other statutes prohibiting sex
discrimination, which do extend to non-textual components of
communications. Commenters argued that there is no indication in the
NPRM or otherwise that any of these agencies have had difficulty
enforcing such regulations, or that covered entities have sought
greater clarity because such standards are too subjective.
---------------------------------------------------------------------------
\1711\ 34 CFR 106.9(b)(2) (``A recipient shall not use or
distribute a publication of the type described in this paragraph
which suggests, by text or illustration, that such recipient treats
applicants, students, or employees differently on the basis of sex
except as such treatment is permitted by this part.''); cf. Sec.
106.8(b)(2)(ii) (``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.'').
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' arguments that
34 CFR 106.9(b)(2)'s phrasing that a recipient cannot use or distribute
any publication that ``suggests, by text or illustration'' that the
recipient treats people differently based on sex is superior to the
phrasing in Sec. 106.8(b)(2)(ii) that a recipient must not use or
distribute a publication ``stating that the recipient'' treats people
differently based on sex. The Department believes, however, that
requiring recipients to (a) have a non-discrimination policy, (b)
notify relevant persons and entities of that policy, and (c) post that
policy on the recipient's website and in handbooks and catalogs,
sufficiently ensures that a wide pool of people affiliated with the
recipient, and the general public, understand a recipient's obligation
to not discriminate based on sex.\1712\ The Department does not believe
that recipients' graphic or pictorial illustrations that appear on a
recipient's various publications (e.g., pictures of children in a
classroom in a recipient's catalog, or photos of students in caps and
gowns on a recipient's website) should be scrutinized by the Department
for the purpose of deciding whether by virtue of such graphics, photos,
or illustrations the recipient is ``suggesting'' that the recipient
discriminates in violation of the recipient's clearly stated policy
that the recipient does not discriminate. Rather, the Department
believes that recipients' publications should take care not to
``state'' different treatment based on sex in contravention of the
recipient's required non-discrimination policy.
---------------------------------------------------------------------------
\1712\ We have revised Sec. 106.8(b)(2)(ii) to refer to ``title
IX or this part'' rather than simply ``this part'' to acknowledge
that Title IX, 20 U.S.C. 1681 et seq. contains exemptions and
exceptions to Title IX's non-discrimination mandate, not all of
which are reflected expressly in the Department's implementing
regulations.
---------------------------------------------------------------------------
The sufficiency of the Department's response to any individual FOIA
request is beyond the scope of this rulemaking. Further, the Department
does not believe that evidence of specific instances in which a
recipient or the Department actually found the ``suggests, by text or
illustration'' language in 34 CFR 106.9(b)(2) to be confusing or
unfairly subjective is necessary in order to justify the Department's
reconsideration of this language and the Department's conclusion that
the better policy is to evaluate ``statements'' made in recipient's
publications rather than ``suggestions'' made via illustrations.
The Department acknowledges that Sec. 106.8(b)(2)(ii) uses
different language than the Title IX regulations of other Federal
agencies. The Department believes that these final regulations
appropriately update the Title IX regulations enforced by the
Department, regardless of whether other agencies also adopt the same
language in each provision, and nothing in Sec. 106.8 creates a
conflict with, or makes it difficult for a recipient to comply with,
other agencies' regulations.
Changes: None.
Judicial Requirements for Sex Discrimination
Comments: One commenter stated that for more than 30 years, courts
and agencies enforcing Title IX have applied the language in 34 CFR
106.9(b)(2) to address sex stereotyping without apparent difficulty and
asserted that not including in Sec. 106.8(b)(2)(ii) the language from
34 CFR 106.9(b)(2) regarding a publication that ``suggests, by text or
illustration'' different treatment on the basis of sex (and replacing
that language with language in Sec. 106.8(b)(2)(ii) referencing a
publication ``stating'' different treatment on the basis of sex) runs
contrary to clearly established Supreme Court precedent that explicitly
recognizes the right to be protected from discrimination and harassment
based on
[[Page 30469]]
sex, including sex stereotyping. This commenter further asserted that
for the same reason, Sec. 106.8 is fundamentally inconsistent with the
plain language of the Title IX statute (20 U.S.C. 1681) because the
Supreme Court has held that a school can violate Title IX where a
student is denied access to educational benefits and opportunities on
the basis of sex, even in the absence of a facially discriminatory
policy. This commenter also contended that Sec. 106.8 is inconsistent
with the Title IX statute and applicable case law because the language
in Sec. 106.8 prohibits explicit intentional discrimination yet allows
implicit discrimination, which can deny students a fair and equal
education. In support of this, the commenter stated that courts have
consistently recognized and upheld Title IX regulations that prohibit
policies found to have a discriminatory effect on one sex.
Discussion: The Department does not believe that the reference in
Sec. 106.8(b)(2)(ii) to a recipient's publication as ``stating'' that
the recipient does not treat people differently based on sex instead of
a publication that ``suggests, by text or illustration'' that a
recipient treats people differently based on sex, constitutes rejection
or modification of the way that Federal courts have applied sex
stereotyping as a theory of sex discrimination. Nothing in the language
of Sec. 106.8(b)(2)(ii) restricts or changes the Department's ability
to evaluate a recipient's publication for statements of different
treatment on the basis of sex, including on a theory of sex
stereotyping. Whether a publication ``states'' different treatment on
the basis of sex, including based on a theory of sex stereotyping, is
an inquiry distinct from whether the publication might be viewed as
``suggesting'' or implying different treatment on the basis of sex,
including based on a theory of sex stereotyping. For reasons explained
above, the Department does not believe it is reasonable or useful for
the Department to scrutinize every graphic, picture, and illustration
in a recipient's publications to discern whether such illustrations
suggest, or imply, different treatment that is not intended, not
applied, and not reasonably perceived as such.
Changes: None.
Implicit Forms of Sex Discrimination
Comments: A number of commenters offered examples of ways schools
could suggest that they discriminate on the basis of sex without
explicitly stating it, to explain commenters' concerns regarding the
proposed rules' replacement of language from 34 CFR 106.9(b)(2) with
the language in Sec. 106.8(b)(2)(ii). One commenter argued that the
Department provided no statistical or other evidence to show that the
rationale for the provision has changed, or that sex stereotyping no
longer needs to be remedied. The commenter contended that published
policies and materials of a school can be susceptible to suggestions of
sex stereotyping even where the publications do not ``state''
discriminatory practices. The commenter argued that both male and
female students continue to be subjected to sex stereotyping in the
forms of visual images, statements, and conduct that limits or denies
their access to career and technical education paths based on sex.
Commenters asserted that male students are discouraged from engaging in
dance or theater because these occupations are not sufficiently
``masculine,'' and female students are discouraged from participating
in science or engineering based on stereotypical conceptions of a
woman's ability to do math and science. One commenter asserted that it
is rare for an entity to directly state that it discriminates and that
there are many other ways a discriminatory message can come across; for
example, a brochure used to recruit applicants to a nursing school
should not contain 40 photos of female students and no photos of male
students.
Another commenter expressed concern that there are numerous symbols
that get a point across as well as, if not better than, actually
stating something (e.g., burning a cross on one's lawn). One commenter
asserted that overt racism and sexism are less common in the modern era
and that statements hinting at a policy of sex discrimination are used
in lieu of explicit statements. The commenter asserted that for
example, instead of a recipient stating that it reserves Advanced
Placement classes for college-bound men because a woman's place is in
the home, the recipient might state ``we promote traditional gender
roles and encourage women to take appropriate coursework to prepare for
those roles.'' The commenter argued that while both statements have the
same message and refer to a school's pattern of violating Title IX by
forbidding women from taking the same classes as men, only one is
explicit enough to contravene the proposed regulations. One commenter
stated that while the commenter appreciated the Department's efforts to
instill objectivity into Sec. 106.8(b)(2)(ii), the commenter was
concerned that the provision would allow schools to send discriminatory
messages and then hide behind the fact that those messages did not
explicitly state the schools were discriminating on the basis of sex.
The commenter asserted that for example, a school may post a sign
relating to sexual misconduct which includes images of a male student
and the statement ``don't be that guy,'' which suggests that the school
thinks only men commit sexual assault even though the school may state
that it has a policy of non-discrimination. The commenter suggested
that the Department use an objective standard that also prohibits non-
textual indications of sex discrimination.
Some commenters stated that the only example of the Department's
application of 34 CFR 106.9(b)(2) that they could locate was a case in
which OCR determined that a school handbook describing a club as ``open
to all boys'' violated 34 CFR 106.9(b)(2), even though the language did
not state the club was ``not open to all girls'' because the
description indicated that the club was intended for students of a
particular sex. These commenters expressed concern that proposed Sec.
106.8(b)(2)(ii) could overrule this decision, which would enable
recipients to steer students into programs and activities based on sex.
Discussion: For reasons described above, the Department does not
believe it is appropriate to scrutinize the graphics, photos, and
illustrations chosen by a recipient in its publications in order to
determine whether a recipient's publication ``suggests'' different
treatment based on sex. The Department disagrees with the commenter who
argued that a recipient should not be allowed to use a picture on a
nursing school brochure depicting a group of women, without additional
context about the brochure asserting that men were treated differently
in such a nursing program. The Department does not believe that
examining illustrations used in a recipient's publications yields a
reasonable, fair, or accurate assessment of whether a recipient engages
in sex discrimination, and does not believe that expecting a
proportionality requirement in the illustrative, graphic, and
photographic depictions of all the kinds of students to whom a
recipient's programs are available bears a reasonable relation to
whether the recipient treats students or employees differently on the
basis of sex contrary to the recipient's policy of non-discrimination.
To the extent that a commenter accurately describes an OCR enforcement
action as concluding that a
[[Page 30470]]
recipient's publication violated 34 CFR 106.9 because the publication
described a program as ``open to all boys,'' such a result could also
follow from application of Sec. 106.8 because the publication could be
found to ``state'' different treatment on the basis of sex. Thus, the
enforcement action described by the commenter may not reach a different
result under the final regulations. Similarly, a commenter's example of
a recipient publication showing a picture of a male with text stating
``Don't be that guy'' and referring to sexual assault prevention could
be evaluated under Sec. 106.8 as to whether the publication states
different treatment on the basis of sex, without using the language
``suggests, by text or illustration'' used in 34 CFR 106.9.
Changes: None.
Analogous Provisions in Other Laws
Comments: Some commenters asserted that proposed Sec.
106.8(b)(2)(ii) is not aligned with analogous provisions that Congress
has enacted in laws prohibiting sex discrimination to address the
problem of entities attempting to exclude a protected group by
indicating they are not welcome; commenters referred to, for example,
Title VII and the Fair Housing Act which prohibit notices, statements,
or advertisements that indicate preference, limitation, or
discrimination. The commenters argued that the word ``indicate'' used
in these statutes is much closer to the word ``suggest'' in 34 CFR
106.9(b)(2) and asserted that it is unclear why the Department would
want to create a regime where a recipient could not indicate that it
did not hire or rent to women, but could suggest that it did not admit
women to its education program.
Discussion: The Department acknowledges commenters' references to
non-Title IX statutes that use words like ``indicate'' to prohibit
discrimination on prescribed bases. However, for the reasons described
above, the Department believes that under Title IX, prohibiting
recipients from using publications ``stating'' that the recipient
discriminates under Title IX sufficiently advises recipients not to
make such statements in publications, without unnecessarily
scrutinizing recipients' publications' pictures, graphics, and
illustrations for a ``suggestion'' of discrimination where none is
actually practiced by the recipient, and where statements in a
publication do not convey different treatment on the basis of sex.
Section 106.8(b)(2)(ii) allows the Department to analyze the context of
such a publication and require a recipient to change such statements as
necessary to promote the purposes of Title IX.
Changes: None.
Suggested Modifications
Comments: One commenter suggested that the Department require a
recipient's non-discrimination policy to be published in multiple
locations on the website where appropriate, including for example, the
recipient's human resources page and admissions page. Another commenter
suggested that the Department require recipients to post all of a
recipient's Title IX policies and procedures on their website in one
easily accessible PDF document and located at a single website link.
One commenter stated that the Department did not provide an adequate
definition of the characteristics of display that would qualify as
``prominent'' and recommended that the Department clarify the
definition of ``prominent display'' as that phrase is used in Sec.
106.8(b)(2)(i). The commenter also recommended that the Department
reiterate Federal standards regarding translation of materials into
languages other than English.
One commenter urged the Department to require recipients that have
identified conflicts between the application of Title IX and the
religious tenets of religious organizations that controls such
recipients to include such information in their non-discrimination
policy. The commenter asserted that requiring this information would
promote consumer choice and is consistent with all other information
that Federal law requires a school to disclose, particularly in higher
education, and would enable a student to make a knowing and voluntary
choice about whether to attend the school. The commenter also argued
that requiring recipients to disclose inapplicability of Title IX to
some or all of their programs in their non-discrimination policy should
not be limited to religious institutions, and that it should also
apply, for example, to an educational institution that receives Federal
funds and believes that it is exempt from Title IX because it is
training people for the merchant marines, or to a voluntary youth
services organization or social fraternity or sorority whose membership
practices are not subject to Title IX.
One commenter requested clarification regarding the language in
Sec. 106.8(b)(2)(ii) that recipients must not use publications stating
that they treat applicants, students, or employees differently ``on the
basis of sex'' except as such treatment is permitted ``by this part.''
One commenter asked whether an educational institution within the scope
of Sec. 106.12(a) is required to (a) notify applicants, students,
employees, and others that it does not discriminate on the basis of
sex, even though that is not true, or (b) notify applicants, students,
employees, and others that it does not discriminate on the basis of
sex, except in circumstances identified in that notification that are
permissible because of Sec. 106.12(a).
Discussion: The Department appreciates commenters' suggestions for
modifications to the way notice and publication of a recipient's non-
discrimination policy is given in Sec. 106.8. The Department notes
that nothing in the final regulations prevents a recipient from
choosing to adopt commenters' suggestions, for example that the policy
is placed on multiple, specific pages of the recipient's website;
ensuring the policy appears as a PDF linked document on the website;
and that the notice appears in multiple languages. However, the
Department believes that Sec. 106.8 sets forth reasonable, enforceable
requirements that achieve the purpose of ensuring that relevant persons
and organizations know the recipient's non-discrimination policy,
without prescribing how the recipient must organize its website. There
is no exemption for a recipient's non-discrimination policy required
under Sec. 106.8, from laws, regulations, Federal standards, and
recipient policies regarding translation of materials and information
into languages other than English.
The Department does not believe that recipients with religious or
other exemptions to Title IX are making false representations by
complying with Sec. 106.8, because (a) a recipient's non-
discrimination policy must state that the requirement not to
discriminate extends to admission ``unless subpart C of this part does
not apply'' and (b) the final regulations add ``by title IX or this
part'' instead of just ``by this part'' in Sec. 106.8(b)(2)(ii). These
qualifiers encompass the reality that some recipients are exempt from
Title IX in whole or in part due to the various statutory and
regulatory exemptions, including the religious exemption whereby a
recipient is exempt from Title IX to the extent that application of
Title IX is inconsistent with a religious tenet of a religious
organization that controls the recipient. Moreover, nothing in the
final regulations precludes a recipient from stating on its website, in
publications, and elsewhere that the recipient has a particular
statutory or regulatory exemption under Title IX. Further, under Sec.
106.8(b)(1) any person can inquire about application of Title IX to the
recipient by referring
[[Page 30471]]
inquiries to the recipient's Title IX Coordinator, the Assistant
Secretary, or both.
Changes: The final regulations use the phrase ``permitted by title
IX or this part'' instead of ``permitted by this part'' to more
comprehensively reference Title IX exemptions contained in the Title IX
statute, as well those exemptions contained in Title IX regulations.
Section 106.8(c) Adoption and Publication of Grievance Procedures
Comments: Some commenters expressed support for Sec. 106.8(c),
asserting that it would bring clarity to the regulatory requirement
that formal complaints of sexual harassment must use ``prompt and
equitable'' grievance procedures.
One commenter expressed concern that the proposed rules did not
address ``totalitarian'' reporting methods such as third-party
reporting, bystander intervention, and posting fliers all over campus
that encourage students to make reporting a habit.
Discussion: The Department appreciates commenters' support for the
proposed rules' intention in Sec. 106.8(c) to clarify that recipients
must apply prompt and equitable grievance procedures to resolve
complaints of sex discrimination generally, and to resolve formal
complaints of sexual harassment. As explained below, we have revised
Sec. 106.8(c) to clarify that recipients must have ``prompt and
equitable'' grievance procedures for complaints of sex discrimination,
and must have in place a grievance process that complies with Sec.
106.45 for formal complaints of sexual harassment.
The Department believes that the notice and publication
requirements in Sec. 106.8(b) and the adoption and publication of
grievance procedures provisions in Sec. 106.8(c) adequately ensure
that the recipient disseminates information about its obligation not to
discriminate under Title IX, and how to report and file complaints
about sex discrimination, including sexual harassment. The Department
notes that while the definition of ``actual knowledge'' in Sec. 106.30
provides for a recipient to obtain actual knowledge of sexual
harassment via third-party reporting, the definition of ``formal
complaint'' in Sec. 106.30 precludes a third party from filing a
formal complaint, which is defined as a document that must be filed by
a complainant or signed by the Title IX Coordinator. As discussed
elsewhere in this preamble, the final regulations neither require nor
prohibit a recipient from disseminating information about bystander
intervention designed to prevent sexual harassment. A primary focus of
these final regulations is to govern a recipient's response to sexual
harassment of which the recipient has become aware, and to provide
accessible options for any person to report sexual harassment to
trigger a recipient's response obligations. Similarly, nothing in the
final regulations requires or prohibits a recipient from posting flyers
on campus encouraging students and others to report sexual harassment;
recipients should retain flexibility to communicate with their
educational community regarding the importance of reporting sexual
harassment. The Department believes that Title IX's non-discrimination
mandate is best served by ensuring that a recipient's response
obligations are triggered via notice of sexual harassment from any
source, and that third-party reporting appropriately furthers the
purposes of Title IX. We have revised Sec. 106.8(a) to emphasize that
``any person'' may report sexual harassment (whether or not the person
reporting is the person alleged to be the victim of sexual harassment)
using the contact information listed for the Title IX Coordinator, and
specifying that such a report may be made ``at any time (including
during non-business hours)'' by using the telephone number or email
address, or by mail to the office address, listed for the Title IX
Coordinator. We have also revised the Sec. 106.30 definition of
``actual knowledge'' to emphasize that ``notice'' includes (but is not
limited to) a report to the Title IX Coordinator as described in Sec.
106.8(a). The Department disagrees that accessible reporting channels,
and the right of any person to report sexual harassment, constitute a
``totalitarian'' system or otherwise has negative consequences. As
demonstrated by the data discussed in the ``General Support and
Opposition'' section of this preamble, sexual harassment is a prevalent
problem affecting the educational access of students at all educational
levels, and a recipient's knowledge of sexual harassment triggers the
recipient's non-deliberately indifferent response under these final
regulations so that instances of sexual harassment are addressed in a
manner that is not clearly unreasonable in light of the known
circumstances.\1713\
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\1713\ Section 106.44(a) (describing a recipient's general
response obligations upon having actual knowledge of sexual
harassment against a person in the United States in the recipient's
education program or activity).
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Changes: We have revised Sec. 106.8(a) to state that any person
may report sex discrimination, including sexual harassment, whether or
not the person reporting is the person alleged to be victimized by sex
discrimination or sexual harassment, by using the contact information
listed for the Title IX Coordinator, and stating that such a report may
be made at any time (including during non-business hours) by using the
telephone number or email address, or by mail to the office address,
listed for the Title IX Coordinator. We have also revised the Sec.
106.30 definition of ``actual knowledge'' to specify that ``notice''
conveying actual knowledge on the recipient includes reporting sexual
harassment to the recipient's Title IX Coordinator as described in
Sec. 106.8(a).
Comments: Some commenters expressed confusion as to whether the
``grievance procedures'' referenced in Sec. 106.8(c) would apply to
sexual harassment, sex discrimination generally, or both. Some
commenters criticized the Sec. 106.45 grievance process as ``extreme''
and argued that recipients should not have to use the same
``weaponized'' process to address non-sexual harassment sex
discrimination. Other commenters asserted that the proposed rules
created a dual system of grievance procedures: ``prompt and equitable''
grievance procedures applicable to sex discrimination generally, and to
``informal complaints'' of sexual harassment, and separate grievance
procedures (described in Sec. 106.45) for formal complaints of sexual
harassment. Some commenters asserted that the phrasing in proposed
Sec. 106.8(c) was unnecessarily confusing because ``grievance
procedures that provide for the prompt and equitable resolution of
student and employee complaints . . . and of formal complaints''
suggests that two separate processes are required; commenters
recommended removing the phrase ``student and employee complaints'' to
affirm that ``prompt and equitable'' grievance procedures are used only
in response to ``formal complaints.'' Some commenters wondered if a
complaint about retaliation would be handled under the Sec. 106.45
grievance process, or under the ``prompt and equitable'' grievance
procedures referenced in Sec. 106.8(c).
Some commenters argued that schools do not need more specific
procedural rules than the directive in Sec. 106.8(c) that grievance
procedures must be ``prompt and equitable'' and that the ``extreme''
procedures in Sec. 106.45 are not necessary. Other commenters argued
that schools need more guidance as to how to handle non-sexual
harassment sex discrimination complaints than the broad ``prompt and
equitable'' requirement in Sec. 106.8(c). Some
[[Page 30472]]
commenters argued that while Sec. 106.8(c) ``claims'' that procedures
resolving formal complaints of sexual harassment must be ``equitable,''
the provisions of Sec. 106.45 are inequitable.
Some commenters asserted that recipients know they are supposed to
``adopt and publish'' grievance procedures yet, commenters claimed,
most recipients still do not adopt and publish their grievance
procedures or designate a Title IX Coordinator. Some commenters
asserted that Sec. 106.8(c) should only require recipients to ``adopt
and publish'' grievance procedures that align with the recipient's
State laws regarding imposition of discipline in response to sexual
harassment or sex discrimination. At least one commenter argued that
Sec. 106.8(c) should expressly require that recipients must ``adopt
and publish'' the recipient's entire grievance process ``soup-to-nuts''
so that parties to a sexual harassment complaint do not need to wait
until the process has begun to be informed by the recipient of exactly
what the grievance process entails; the commenter gave an example of
the commenter's university's written grievance procedures that informed
students in writing, on the university's website, of several steps in
the grievance process and then stated that ``the remainder'' of the
recipients' procedures would ``be explained to a respondent and
complainant'' as needed, which the commenter asserted is unfair.
One commenter urged the Department to modify Sec. 106.8(c) to
specifically require elementary and secondary schools to provide copies
of the school's complaint form, because the commenter asserted that
many schools use their own customized form yet fail to make the form
available, so students and employees do not know how to actually file a
complaint.
One commenter stated that because Title IX was written to prevent
all discrimination, a recipient's policy should not distinguish among,
and should address, all types of harassment with basic common sense
rules such as: (1) Every educational institution should have a
harassment policy written by a representative group of educators and
students or their parents and approved by the parent's association or
student council; (2) every student and/or parent should receive and
sign an acknowledgement of that policy; (3) every educational
institution should be responsible for inappropriate behavior on any of
its educational and recreational areas; (4) complaints may be filed by
an alleged victim or their representative who can be a parent,
educational, medical or law enforcement professional; (5) complaints
must be acknowledged within a week and addressed by an independent
board of individuals which should include parents, educational, medical
or law enforcement professionals, and peers at the postsecondary level;
(6) complaints should be forwarded to law enforcement when appropriate;
(7) opportunity for redress should be allowed by a second independent
board if the first verdict is unacceptable; and (8) a no bullying/no
harassment curriculum should be mandatory for all students and all
teaching professionals, and coaches should be required to attend
training on this subject.
One commenter recommended that students and employees should be
notified promptly when a policy or procedure is changed in order for
the community to be made aware of any alterations to the policies and
procedures to which they are held accountable and by which they are
protected.
Discussion: In response to commenters' concerns that the wording in
Sec. 106.8(c) did not clearly convey that under the final regulations
a recipient must adopt a grievance process that complies with Sec.
106.45 for handling formal complaints of sexual harassment, the final
regulations revise Sec. 106.8(c) to specify that a recipient must not
only adopt and publish grievance procedures ``for the prompt and
equitable resolution of student and employee complaints alleging any
action that would be prohibited by this part'' but also a ``grievance
process that complies with Sec. 106.45 for formal complaints as
defined in Sec. 106.30.'' While a recipient is free to apply the Sec.
106.45 grievance process to resolve complaints of non-sexual harassment
sex discrimination, the final regulations only require a recipient to
use the Sec. 106.45 grievance process with respect to formal
complaints of sexual harassment.\1714\ These final regulations do not
recognize a response specifically for an ``informal complaint'' of
sexual harassment. These final regulations require a recipient to
investigate and adjudicate using a grievance process that complies with
Sec. 106.45 in response to any formal complaint of sexual
harassment,\1715\ and preclude a recipient from imposing disciplinary
sanctions on a respondent without first following a grievance process
that complies with Sec. 106.45.\1716\ Thus, if a recipient has actual
knowledge of sexual harassment allegations (whether via a verbal or
written report or other means of conveying notice to a Title IX
Coordinator, official with authority to institute corrective measures,
or any elementary or secondary school employee), but neither the
complainant (i.e., the person alleged to be the victim) nor the Title
IX Coordinator decides to file a formal complaint, the recipient must
respond promptly in a non-deliberately indifferent manner, including by
offering supportive measures to the complainant, but cannot impose
disciplinary sanctions without following the Sec. 106.45 grievance
process. We have also clarified, in Sec. 106.71(a), that complaints of
retaliation for exercise of rights under Title IX must be handled by
the recipient under the ``prompt and equitable'' grievance procedures
referenced in Sec. 106.8(c) for handling of complaints of non-sexual
harassment sex discrimination.
---------------------------------------------------------------------------
\1714\ As discussed throughout this preamble, including in the
``Role of Due Process in the Grievance Process'' section of this
preamble, the Department has selected the specific procedures
prescribed in the Sec. 106.45 grievance process for the purpose of
addressing the unique challenges presented by sexual harassment
allegations, and such challenges may or may not be present with
respect to other forms of sex discrimination, many of which result
from official school policy rather than from the independent choices
of individual students, employees, or third parties.
\1715\ Section 106.44(b)(1).
\1716\ Section 106.44(a).
---------------------------------------------------------------------------
We have also revised Sec. 106.8(c) to expand the group of persons
to whom notice of the ``prompt and equitable grievance procedures'' and
``grievance process that complies with Sec. 106.45'' must be provided:
Rather than sending such notice only to students and employees,
recipients now also must send that notice to ``persons entitled to a
notification under paragraph (a) of this section'' (i.e., Sec.
106.8(a)), which, as discussed above, includes students, employees,
applicants for admission and employment, parents or legal guardians of
elementary and secondary school students, and unions and similar
professional organizations). Moreover, this provision is revised to
clarify that the notice about the grievance procedures (which apply to
sex discrimination) and grievance process (which applies specifically
to sexual harassment) must include ``how to report or file a complaint
of sex discrimination, how to report or file a formal complaint of
sexual harassment, and how the recipient will respond.'' These changes
to Sec. 106.8(c) thus ensure that more people affected by a
recipient's grievance procedures (for sex discrimination, and per Sec.
106.71(a) of the final regulations, complaints of retaliation under
Title IX) and grievance processes for Title IX sexual
[[Page 30473]]
harassment, receive notice of those grievance procedures and grievance
processes, including how to initiate those procedures and processes.
These revisions to Sec. 106.8(c) emphasize that a result of the
final regulations is creation of a prescribed grievance process for
Title IX sexual harassment (which is triggered when a complainant
files, or a Title IX Coordinator signs, a formal complaint), while the
handling of non-sexual harassment sex discrimination complaints brought
by students and employees (for instance, complaints of sex-based
different treatment in athletics, or with respect to enrollment in an
academic course) remains the same as under current regulations (i.e.,
recipients must have in place grievance procedures providing for prompt
and equitable resolution of such complaints). Thus, Sec. 106.8(c)
better ensures that students, employees, parents of elementary and
secondary school students, applicants for admission and employment, and
unions, all are aware of a recipient's procedures and processes for
intaking reports and complaints of all forms of sex discrimination
including the particular reporting system, grievance process, and
recipient responses required under these final regulations regarding
sexual harassment. For reasons discussed throughout this preamble,
including in the ``General Support and Opposition for the Grievance
Process in Sec. 106.45'' section of this preamble, the Department
believes that the prescribed procedures that recipients must use in a
Title IX sexual harassment grievance process are necessary to achieve
the purposes of increasing the legitimacy and reliability of recipient
determinations regarding responsibility for sexual harassment while
decreasing the likelihood of sex-based bias influencing such
determinations, and we clarify in revised Sec. 106.8(c) that the Sec.
106.45 grievance process is different from the directive that
recipients' handling of complaints of other types of sex discrimination
must be ``prompt and equitable.'' We therefore decline to authorize
recipients to substitute a State law grievance procedure for the Sec.
106.45 grievance process. Because recipients must ``adopt and publish''
(and send notice to the group of people identified in Sec. 106.8(a)
of) a grievance process that complies with Sec. 106.45, the Department
believes that each recipient's educational community will be aware of
the procedures involved in a recipient's grievance process without the
unfairness of waiting until a person becomes a party to discover what
the recipient's grievance process looks like. Non-sexual harassment sex
discrimination often presents situations that differ from sexual
harassment (for example, a complaint that school policy treats female
applicants differently from male applicants, or that school practice is
to devote more resources to male sports teams than to female sports
teams), and the Department does not, in these final regulations, alter
recipients' obligation to handle complaints of non-sexual harassment
sex discrimination by applying grievance procedures that provide for
the ``prompt and equitable resolution'' of such complaints.
The Department understands that despite 34 CFR 106.9 having
required, for decades, recipients to adopt and publish prompt and
equitable grievance procedures (and designate an employee to coordinate
the recipient's efforts to comply with Title IX), some recipients have
not ``adopted and published'' grievance procedures for handling sex
discrimination complaints, and have not designated a Title IX
Coordinator. The Department intends to enforce these final regulations
vigorously for the benefit of all students and employees in recipients'
education programs or activities, and any person may file a complaint
with the Department alleging that a recipient is non-compliant with
these final regulations. We have revised Sec. 106.8(c) to more clearly
require recipients to give notice to its educational community of how
to report sex discrimination or sexual harassment, how to file a
complaint of sex discrimination or a ``formal complaint of sexual
harassment,'' and ``how the recipient will respond.''
We appreciate a commenter's concern that some recipients use a
specific form for students and employees when filing a sex
discrimination complaint. Under these final regulations at Sec.
106.30, a ``formal complaint'' of sexual harassment is defined as a
``document signed by a complainant'' and a formal complaint may be
filed by a complainant in person or by mail to the office address, or
by email, using the listed contact information for the Title IX
Coordinator, or by any other method designated by the recipient. Thus,
even if a recipient desires for complainants to only use a specific
form for filing formal complaints, these final regulations permit a
complainant to file a formal complaint by either using the recipient-
provided form (or electronic submission system such as through an
online portal provided for that purpose by the recipient), or by
physically or digitally signing a document and filing it as authorized
(i.e., in person, by mail, or by email) under these final regulations.
These final regulations do not preclude a recipient from following
the steps suggested by a commenter with respect to involving parent and
student groups in the development of a recipient's anti-harassment
policy, so long as the recipient adopts and publishes a grievance
process for formal complaints of sexual harassment that complies with
Sec. 106.45, and so long as the recipient's reporting system for
responding to sexual harassment complies with Sec. 106.8, Sec.
106.30, and Sec. 106.44 in these final regulations.
Because recipients must ``adopt and publish'' the recipient's
grievance procedures (for sex discrimination) and grievance process
(for formal complaints of sexual harassment), the recipient's
obligation is to ``publish'' (and send notice, as appropriate) when the
recipient no longer uses one grievance procedure or grievance process
and instead uses a different procedure or process.
Changes: The final regulations revise Sec. 106.8(c) by
distinguishing between the ``grievance procedures'' for ``prompt and
equitable resolution'' of complaints of non-sexual harassment sex
discrimination, and the ``grievance process that complies with Sec.
106.45 for formal complaints'' of sexual harassment; expands the list
of people whom the recipient must notify of the foregoing procedures
and processes (by referencing the revised list in Sec. 106.8(a)); and
adds clarifying language that the information provided must include how
to report or file a complaint of sex discrimination, how to report or
file a formal complaint of sexual harassment, and how the recipient
will respond.
Section 106.8(d) Application Outside the United States
Comments: One commenter expressed general support for Sec.
106.8(d). Some commenters argued that Sec. 106.8(d) is inconsistent
with the spirit of Title IX and the Clery Act. Commenters contended
that, under the NPRM, no misconduct outside the United States would be
covered, which frustrates the basic goal of Title IX to protect
students when participating in educational programs or activities
receiving Federal funds. Commenters also asserted that Sec. 106.8(d)
is inconsistent with the Clery Act because the Clery Act addresses
conduct committed abroad on campuses of institutions of higher
education. Commenters asserted that this inconsistency would impede the
Title IX Coordinator's ability to implement consistent responses to
sexual
[[Page 30474]]
misconduct and identify patterns that could threaten individuals and
communities. Commenters argued that this conflict also creates the need
for separate processes to address the same misconduct, which undermines
the Department's stated goal of streamlining processes to create more
efficient systems.
Discussion: The Department appreciates the general support for this
provision and appreciates commenters' concerns. Section 106.8(d) of the
final regulations clarifies that the recipient's non-discrimination
policy, grievance procedures that apply to sex discrimination, and
grievance process that applies to sexual harassment, do not apply to
persons outside the United States. Contrary to the claims made by some
commenters that this provision conflicts with the spirit of Title IX,
the Department believes that by its plain text the Title IX statute
does not have extraterritorial application. Indeed, 20 U.S.C. 1681
indicates 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'' (emphasis added). We believe a
plain language interpretation of a statute is most consistent with
fundamental rule of law principles, ensures predictability, and gives
effect to the intent of Congress. Courts have recognized a canon of
statutory construction that ``Congress ordinarily intends its statutes
to have domestic, not extraterritorial, application.'' \1717\ This
canon rests on presumptions that Congress is mainly concerned with
domestic conditions and seeks to avoid unintended conflicts between our
laws and the laws of other nations.\1718\ If Congress intended Title IX
to have extraterritorial application, then it could have made that
intention explicit in the text when it was passed in 1972. The Supreme
Court most recently acknowledged the presumption against
extraterritoriality in Morrison v. National Australian Bank,\1719\ and
Kiobel v. Royal Dutch Petroleum.\1720\ In Morrison, the Court
reiterated the ``longstanding principle of American law that
legislation of Congress, unless a contrary intent appears, is meant to
apply only within the territorial jurisdiction of the United States.''
\1721\ The Court concluded that ``[w]hen a statute gives no clear
indication of extraterritorial application, it has none.'' \1722\ As
discussed in the ``Section 106.44(a) `against a person in the U.S'''
subsection of the ``Section 106.44 Recipient's Response to Sexual
Harassment, Generally'' section of this preamble, the Department
believes that restricting Title IX coverage to persons in the United
States applies the statute as passed by Congress. However, in response
to commenters' assertions that Sec. 106.8(d) was not faithful to the
wording of the Title IX statute, the final regulations revise this
provision's header to read ``Application outside the United States''
and simplify the provision's wording to more clearly accomplish the
provision's goal by stating: ``The requirements of paragraph (c) of
this section apply only to sex discrimination occurring against a
person in the United States.''
---------------------------------------------------------------------------
\1717\ Small v. United States, 544 U.S. 385 (2005).
\1718\ See Smith v. United States, 507 U.S. 197, 204 (1993).
\1719\ 561 U.S. 247 (2010).
\1720\ 569 U.S. 108 (2013).
\1721\ Morrison v. Nat'l Australian Bank, 561 U.S. 247, 255
(2010).
\1722\ Id.; Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 115
(2013) (citing Morrison, 561 U.S. at 255).
---------------------------------------------------------------------------
With respect to the concerns raised by commenters that Sec.
106.8(d) would conflict with the Clery Act, the Department acknowledges
certain misconduct committed overseas is reportable under the Clery Act
where, for example, the misconduct occurs in a foreign location that a
U.S.-based institution owns and controls. However, the Clery Act and
Title IX do not have precisely the same scope or purpose, and the text
of the Title IX statute and controlling case law on the topic of
extraterritoriality support the conclusion that Title IX does not apply
to sex discrimination that occurs outside the United States. The
Department does not believe the interpretation of Title IX as embodied
in these final regulations prevents or complicates a postsecondary
institution's compliance with reporting obligations under the Clery
Act.\1723\
---------------------------------------------------------------------------
\1723\ For further discussion on the intersection between these
final regulations and the Clery Act, see the ``Clery Act''
subsection of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------
Changes: The final regulations revise Sec. 106.8(d) so that its
header reads ``Application outside the United States'' and simplify the
wording to more clearly accomplish the provision's goal by stating that
the requirements of paragraph (c) of this section apply only to sex
discrimination occurring against a person in the United States.
Comments: A number of commenters raised the issue that Sec.
106.8(d) may endanger students and faculty abroad. Commenters argued
that sexual misconduct abroad, whether perpetrated by other students,
faculty, graduate advisors, or other recipient employees, may
significantly impact survivors' academic and career trajectories.\1724\
Commenters argued that the effect of Sec. 106.8(d) would be to force
victims to drop out of their schools to avoid hostile environments
created by misconduct committed abroad. Some commenters asserted that
the U.S. generally has more robust disciplinary systems for addressing
sexual misconduct than other countries. Commenters contended that for
the Department to deny Title IX protections outside the United States
would mean unfairly punishing students who simply were in the wrong
place when they were assaulted. One commenter asserted that Sec.
106.8(d) will also endanger recipient faculty and staff who are
sexually assaulted while participating in conferences and other
activities abroad. This commenter argued that Title IX should apply
where both parties are affiliated with the recipient. A few commenters
contended that the Department is ignoring the reality that study abroad
programs and foreign educational activities are increasingly common.
These commenters asserted that, beyond formal study abroad programs,
many other undergraduate and graduate students are engaged in research,
fieldwork, and data collection abroad, across a wide range of fields,
and argued that the NPRM does not just impact study abroad programs,
but also students temporarily visiting other countries for educational
purposes.
---------------------------------------------------------------------------
\1724\ Commenters cited: Robin G. Nelson et al., Signaling
Safety: Characterizing Fieldwork Experiences and Their Implications
for Career Trajectories, 119 Am. Anthropologist 4 (2017).
---------------------------------------------------------------------------
Discussion: For the same reasons discussed under the ``Section
106.44(a) `against a person in the U.S' '' subsection of the ``Section
106.44 Recipient's Response to Sexual Harassment, Generally'' section
of this preamble, the Department believes that restricting Title IX to
persons in the United States applies the statute as passed by Congress,
and notes that Congress remains free to modify Title IX to overcome the
judicial presumption against extraterritorial application of Title IX.
Under these final regulations recipients remain free to adopt robust
anti-harassment and assault policies that apply to the recipient's
programs or activities located abroad, to use recipients' disciplinary
systems to address sexual misconduct committed outside the United
States, and to protect their students from such harm by offering
supportive measures to students impacted by misconduct committed
abroad.
[[Page 30475]]
Changes: None.
Section 106.12 Educational Institutions Controlled by a Religious
Organization
Comments: Some commenters expressed support for the changes to
Sec. 106.12(b), on the basis that the changes offered additional
flexibility to religious educational institutions, and religious
freedom is a vital constitutional guarantee. Commenters also elaborated
on the benefits of religious freedom, suggesting that religion helps
preserve civic virtues, and instills positive moral values for both
individuals and communities. Some commenters noted that freedom of
religion is specifically contemplated by the U.S. Constitution, in the
First Amendment's Free Exercise Clause. Drawing on this fact,
commenters noted that the freedom of religion has been a touchstone of
American government since the country was founded. Other commenters
stated that proposed Sec. 106.12(b) is consistent with the Religious
Freedom Restoration Act, since it avoids placing an unnecessary burden
on religious institutions. Some commenters noted that proposed Sec.
106.12(b) has the ancillary benefit of avoiding confusion for schools,
since many institutions may not obtain a religious exemption before
having a complaint against them filed, but now they will know that
there is no such duty. The corollary to this point, asserted
commenters, is that opponents of a school's religious exemption may not
incorrectly argue that a school has ``waived'' a right to invoke a
religious exemption.
Discussion: The Department appreciates and agrees with the comments
in support of Sec. 106.12(b), which align with the Title IX statute,
the First Amendment, and the Religious Freedom Restoration Act, 42
U.S.C. 2000bb-1. The final regulations bring Sec. 106.12(b) further in
line with the relevant statutory framework in this context, which
states that Title IX ``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), and that the term ``program
or activity,'' as defined in 20 U.S.C. 1687, ``does not include any
operation of an entity which is controlled by a religious organization
if the application of section 1681 of this title to such operation
would not be consistent with the religious tenets of such
organization.''
No part of the statute requires that recipients receive an
assurance letter from OCR, and no part of the statute suggests that a
recipient must be publicly on the record as a religious institution
claiming a religious exemption before it may invoke a religious
exemption in the context of Title IX. Nevertheless, the current
regulations are not clear on whether recipients may claim the exemption
under Sec. 106.12(a) only by affirmatively submitting a letter to the
Assistant Secretary for Civil Rights.
However, longstanding OCR practice aligns with the statute, and the
final regulations codify OCR's practice. To the extent that a recipient
would like to request an assurance letter from OCR, the agency will
continue to respond to such requests, as an option for recipients that
are educational institutions controlled by a religious organization.
Changes: None.
Comments: Commenters noted that religious educational institutions
themselves are vital for American society, noting that schools, among
other religious institutions, have contributed to the alleviation of
social ills through philanthropic and humanitarian projects. Religious
educational institutions, suggested commenters, are necessary for
religious freedom, and the proposed rules are consistent with the
robust views of religious freedom that have been expressed by the U.S.
Constitution, the U.S. Supreme Court, and Congress itself when it
enacted Title IX. To that end, commenters noted that the Federal
government ought to be making it easier for religious institutions to
operate and thrive, not harder. Commenters noted that it would be a
waste of a school's resources to apply for a religious exemption
assurance letter, when no letter is in fact needed to invoke a
religious exemption to Title IX. At least under the proposed rule,
asserted the commenters, the Department's entanglement with a religious
institution's tenets might be limited to those cases where a complaint
is filed, or where the school affirmatively requests an exemption
assurance letter.
Discussion: The Department appreciates the positive feedback on the
proposed revisions in Sec. 106.12(b) and believes that the
Department's prior practice and the revisions to Sec. 106.12(b) in
these final regulations have the effect of promoting religious freedom.
The final regulations codify longstanding OCR practices, and are
consistent with the Title IX statute.
Changes: None.
Comments: Some commenters discussed current Sec. 106.12, as well
as the practice of OCR. Commenters stated that the status quo requires
a religious institution to affirmatively request an exemption, and that
imposing such a duty inappropriately places the burden on religious
educational institutions. Instead, the commenters suggested, the burden
would more appropriately be placed on the government, by having to
disprove the application of a religious exemption. Indeed, commenters
suggested that the status quo could occasionally be turned against
religious educational institutions, by denying religious exemptions or
forcing schools to wait an excessively long period of time before
obtaining a letter of assurance from OCR.
Discussion: Contrary to commenters who suggested that the status
quo requires schools to affirmatively request an assurance letter from
OCR, OCR has previously interpreted the current regulation to mean that
a school can invoke a religious exemption even after OCR has received a
complaint regarding the educational institution. Additionally, the
Department views both the status quo and the final regulations to
require a recipient to invoke and establish its eligibility for an
exemption, and does not view the final regulations as placing the
burden on the Federal government to disprove any claim for religious
exemption. However, it may be correct that many schools and
individuals--such as these commenters themselves--have incorrectly read
current Sec. 106.12 to mean that a recipient must always seek or
receive an assurance letter from OCR to assert the religious exemption
before any complaint is filed against the school, if a religious
exemption is to be invoked. These final regulations clarify that this
is not the case.
Changes: None.
Comments: In the same vein, many commenters supported Sec.
106.12(b) because the provision alleviated the need for schools to
request an assurance letter in order to invoke a religious exemption.
That purported need, the commenters asserted, was inconsistent with the
authority granted by Congress to the Department of Education in Title
IX itself. It was better, the commenters argued, to simply allow
schools the option to obtain the assurance ahead of time, but not
require it. Commenters suggested that forcing religious institutions to
jump through hoops in order to invoke a religious exemption imperils
schools' deeply held religious beliefs. At least one commenter stated
that religious educational institutions have a natural tendency to
reduce their interactions with government, and thus allowing schools to
maintain a religious
[[Page 30476]]
exemption to Title IX even absent an assurance letter was appropriate.
Discussion: The proposed revisions to Sec. 106.12(b) codifies
OCR's practice of permitting recipients to invoke a Title IX religious
exemption without having obtained an assurance letter. However, the
Department agrees with the concern that the current regulation is not
as clear as it could be on this point, and that appears to have
resulted in some confusion among recipients who were unaware of OCR's
existing practice.
Changes: None.
Comments: Some commenters noted that Sec. 106.12(b) will aid
religious educational institutions, and assist with their legal
compliance regimes under Title IX. For instance, one commenter asserted
that a religious educational institution that had single-sex classes
would understand that they do not have to comply with the single-sex
provisions of the current Title IX regulations and instead would simply
be able to maintain a religious exemption generally, if the classes
were based on religious tenets or practices. In other cases, commenters
stated, schools would be able to maintain more flexibility in their
school policies, such as whether to allow students who were assigned
one sex at birth to use the intimate facilities assigned to another
sex; whether to offer birth control as part of their health services;
and how to structure dormitory and other housing policies.
Discussion: The Department appreciates the positive feedback on
Sec. 106.12(b) and agrees with commenters that stated that the final
regulations will assist recipients with complying with Title IX. The
final regulations codify longstanding OCR practices, and are consistent
with the Title IX statute.
Changes: None.
Comments: Many commenters suggested that the proposed change in
Sec. 106.12(b) is a good way to prevent future administrations from
maintaining a hostile posture toward religious educational
institutions. These commenters suggested that the process of compelling
a school to write a request letter to the Assistant Secretary for Civil
Rights, and then waiting for OCR to respond, may raise fears that the
Federal government is passing judgment on religious institutions, or
that hostility toward certain categories of exemptions could trigger
additional delays, or perhaps unduly close scrutiny of whether a
religious educational institution really is eligible for such an
exemption. Commenters also suggested that close scrutiny of religious
exemption requests excessively entangles OCR with religious educational
institutions.
Discussion: The Department is mindful of the concerns that
educational institutions controlled by a religious organization
sometimes express that OCR ``entangles'' itself with a recipient's
religious practices by scrutinizing them too closely, or by delaying
the issuance of an assurance letter (even when such delay is due to
administrative backlogs and is not an intentional delay). The
Department appreciates the positive feedback on Sec. 106.12(b) and
believes that the final regulations will help the Department and its
OCR administer these final regulations consistent with the U.S.
Constitution by minimizing entanglement issues. The final regulations
codify longstanding OCR practices, and are consistent with the Title IX
statute.
Changes: None.
Comments: Some commenters sought to address concerns about
religious exemptions generally, suggesting that religious institutions
need to rely on Title IX less than other schools, since some acts--like
sexual harassment or sexual assault--are generally considered abhorrent
sins under most religious persuasions. Some comments mentioned
Christianity, in particularly, as a religion that is committed to
promoting the safest environment for students, free from discrimination
and harassment. In that vein, commenters stated that Christian
principles have caused Christian colleges to be exceptionally diligent
in protecting students and employees from sexual harassment and sexual
assault. Some commenters stated that it is inappropriate for a school
to invoke a religious exemption in order to escape Title IX liability,
since religious values disfavor discrimination, and discrimination is
generally against a religious moral code. Commenters also stated that
religious exemptions are contrary to the Bible, in that the Bible
condemns sexual harassment and assault, and religious institutions
should be leading the charge against such misconduct. One commenter
stated that God made beings different from each other, and
discrimination against students is contrary to God's creation.
Discussion: The Department appreciates the commenter's concerns and
perspectives. The Department notes that the religious exemption applies
only to the extent application of this part would not be consistent
with the religious tenets of such organization. Through 20 U.S.C. 1682,
Congress authorized the Department to effectuate the provisions of
Title IX, which includes a religious exemption. The Department does not
take a position on whether it is appropriate for a school to invoke
such an exemption and is effectuating the provisions of Title IX,
including the religious exemption that Congress provided in 20 U.S.C.
1681(a)(3) through these final regulations, which are consistent with
the First Amendment and the Religious Freedom Restoration Act.
Changes: None.
Comments: Several commenters noted that they supported Sec.
106.12(b) because of its breadth, reading the provision to mean that
any school, even with a minor religious affiliation, would be eligible
for a religious exemption. The commenters asserted that this was the
correct approach, and that the Department was wise to embrace such a
broad religious exemption.
Discussion: Title IX and current Sec. 106.12 provide that they do
not apply to an ``educational institution which is controlled by a
religious organization to the extent application of this part would not
be consistent with the religious tenets of such organization.'' The
Department does not consider the final regulations to be broader than
the scope of the current regulations or the statute.
Changes: None.
Comments: One commenter argued that there is a potential internal
contradiction between Sec. 106.8 and proposed Sec. 106.12. While a
recipient may have a duty to issue a general notice of non-
discrimination, the commenter argued that they might--at the same
time--maintain a religious exemption that permitted such
discrimination. The commenter argued that this would allow schools to
mislead students by sending out a misleading non-discrimination notice.
The commenter contended that this ``bait and switch'' would undermine
OCR's credibility, and would mean that students at religious
institutions will be deterred from filing complaints. To solve this
problem, the commenter suggested schools claiming a religious exemption
should have to include such a statement in the non-discrimination
notice mandated by Sec. 106.8.
Discussion: Recipients are permitted to distribute publications
under Sec. 106.8(b)(2)(ii) that clarify that the recipient may treat
applicants, students, or employees differently on the basis of sex to
the extent ``such treatment is permitted by Title IX or this part.''
Nothing in the final regulations mandates that recipients deceive
applicants, students, or employees regarding their non-discrimination
practices, and recipients that assert a
[[Page 30477]]
religious exemption are not required to misstate their actual policies
when disseminating their Title IX policy under Sec. 106.8. Indeed, if
a recipient provided inaccurate or false information in any
notification required under Sec. 106.8, then the recipient would not
be in compliance with Sec. 106.8. We note that nothing in the final
regulations supersedes any other contractual or other remedy that an
applicant, student, or employee may have against a recipient based on
an alleged misstatement or false statement. Students at schools that
assert a religious exemption also may always file a complaint with OCR.
Changes: None.
Comments: Numerous commenters expressed opposition to religious
exemptions as a general matter, suggesting that such exemptions are
commonly used to discriminate against students or employees, cause harm
to students and employees, and often are not adequately disclosed in a
public and transparent way so as to give students and employees
appropriate notice that they would not be protected by Title IX. These
commenters argued that the interests underlying the protection of civil
rights outweigh the need to protect a religious institution's
discomfort regarding student behavior. Students at religious
institutions, including LGBTQ students, asserted the commenters,
deserve protection just as much as all other students. Commenters
asserted that the Department owes a duty to students to protect their
civil rights and argued that the proposed rules run contrary to that
duty.
In the same vein regarding transparency, some commenters argued
that permitting recipients to invoke religious exemptions without
having to make a public statement will pit students against their own
schools. The commenters say that since a school is designed to
cultivate critical thinkers, depriving students of transparency runs
counter to this interest. Additionally, commenters stated that students
who seek abortions, hormone therapy, or access to intimate facilities
that are sex-segregated, may feel like their own school does not
protect them, and may feel betrayed by their own institution, leading
to an environment of distrust on campus. Worse, the commenters say,
some students could feel bullied, threatened, or harassed once students
see that the school itself is openly discriminating against its
students. Commenters noted that the same could be true for employees,
and not just students.
Commenters argued that even if a school is entitled to assert a
religious exemption, proposed Sec. 106.12(b) goes too far because it
seems to encourage schools to lie in wait before formally invoking the
religious exemption. Commenters stated that religious educational
institutions should have a legal obligation to give students notice
prior to enrolling or working at a school maintaining a religious
exemption. For that reason, commenters stated, Sec. 106.12(b) is in
tension with the OCR's usual assurance process for all recipients of
Federal education funds, which requires a school to assure the
Department that it will comply with non-discrimination laws as a
condition of receiving Federal education dollars. Another commenter
argued that for private religious elementary and secondary schools that
educate students as part of their Free and Appropriate Public
Education, it is highly troubling for parents not to know about Title
IX exemptions prior to enrollment. One commenter alleged that allowing
a recipient to invoke a religious exemption after a complaint has been
filed with OCR is contrary to the due process principles that these
final regulations are attempting to preserve and protect.
Discussion: In response to the comments about the propriety of
having any religious exemption or the need to protect civil rights over
religious freedom, the Department notes that Title IX itself guarantees
the religious exemption and these final regulations do not change our
long-standing practice of honoring and applying the religious exemption
in the appropriate circumstances. As some commenters in support of
Sec. 106.12(b) noted, the proposed regulations do not prevent OCR from
investigating a complaint simply because the complaint involves an
educational institution controlled by a religious organization. The
recipient must additionally invoke a religious exemption based on
religious tenets. Moreover, this 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.
The Department also appreciates the feedback on the potential
policy implications of the proposed rule; however, the Department is
limited by the Title IX statute,\1725\ and cannot make changes to the
final regulations that are inconsistent with the statute, regardless of
the policy implications addressed by commenters. As mentioned, the
final regulations codify longstanding OCR practices, and are consistent
with the Title IX statute. The Department does not believe that its
current practice or the final regulations violate the U.S.
Constitution. The Department further asserts that Sec. 106.12(b) in
these final regulations is consistent with the First Amendment,
including the Free Exercise Clause as well as the Establishment Clause,
because the Department is not establishing a religion and is instead
respecting a recipient's right to freely exercise its religion.
Additionally, Sec. 106.12(b) in these final regulations is consistent
with the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq.,
which applies to the Department, and requires the Department not to
substantially burden a person's exercise of religion unless certain
conditions are satisfied.\1726\ As the Title IX statute does not
require a recipient to request and receive permission from the
Assistant Secretary to invoke the religious exemption, requiring a
recipient to do so may constitute a substantial burden that is not in
furtherance of a compelling government interest or the least
restrictive means of furthering that compelling government interest
under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1. Such a
requirement also is unnecessary in light of the other requirements in
these final regulations that a recipient notify students, prospective
students, and others about the recipient's non-discrimination statement
as well as its grievance procedures and grievance process to address
sex discrimination, including sexual harassment.
---------------------------------------------------------------------------
\1725\ 20 U.S.C. 1681(a)(3) (``[T]his section 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'').
\1726\ Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)
(holding ``person'' within meaning of the Religious Freedom
Restoration Act's protection of a person's exercise of religion
includes for-profit corporations).
---------------------------------------------------------------------------
Section 106.8 requires all recipients to notify applicants for
admission and employment, students, parents or legal guardians of
elementary and secondary school students, employees, and all unions or
professional organizations holding collective bargaining or
professional agreements with the recipient of its non-discrimination on
the basis of sex as well as its grievance procedures and grievance
process, including how to report or file a complaint of sex
discrimination, how to report or file a formal complaint of sexual
harassment, and how the recipient will respond. Additionally, Sec.
106.8(b)(2)(ii) provides that a recipient
[[Page 30478]]
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 these final
regulations. Accordingly, students and prospective students should
receive adequate notice of the recipient's non-discrimination statement
as well as its grievance procedures and grievance process regarding sex
discrimination, including sexual harassment, and such notice is
consistent with due process principles. Such transparency helps guard
against any misunderstandings, irrespective of whether a school asserts
a religious exemption.
The religious exemption in Title IX, 20 U.S.C. 1681(a)(3), applies
to an educational institution which is controlled by a religious
organization, and students and prospective students likely will know
whether an educational institution is controlled by a religious
organization so as not to be surprised by a recipient's assertion of
such a religious exemption. Additionally, the Department also notes
that under Sec. 106.8(b)(1) any person can inquire about the
application of Title IX to a particular recipient by inquiring with the
recipient's Title IX Coordinator, the Assistant Secretary, or both.
OCR is unaware of a religious school claiming an exemption from
Title IX's obligations to respond to sexual harassment on the basis
that such a response conflicts with the religious tenets of an
organization controlling the religious school. As the Department
explains more thoroughly in the ``Gender-based harassment'' subsection
of the ``Sexual Harassment'' subsection of the ``Section 106.30
Definitions'' section, these final regulations focus on prohibited
conduct. The Department believes any person may experience sex
discrimination, irrespective of the identity of the complainant or
respondent.
Nothing in the final regulations mandates that recipients deceive
applicants, students, or employees regarding their non-discrimination
practices, a recipient remains free to describe its religious exemption
on its website, and nothing in the final regulations supersedes any
other contractual or other remedy that an applicant, student, or
employee may have against a recipient based an alleged misstatement or
false statement.
Changes: None.
Comments: Some commenters ascribed particularly nefarious motives
to recipients, arguing that schools often intentionally deceive
applicants to the school in order to obtain application fees or tuition
revenues. These commenters alleged that religious educational
institutions deliberately hid their purported exemptions from Title IX
and would then blindside students once they were already enrolled in
school. One commenter suggested bigoted university officials would use
religious exemptions as a fig leaf to impose personal beliefs, such as
denying transgender students medical coverage for hormone therapy.
Discussion: Nothing in these final regulations mandates that
recipients deceive applicants, students, or employees regarding their
non-discrimination practices, and nothing in the final regulations
supersedes any other contractual or other remedy that an applicant,
student, or employee may have against a recipient based an alleged
misstatement or false statement. On the contrary, as explained above,
these final regulations including Sec. 106.8, promote transparency by
requiring a recipient to provide notice of its non-discrimination
statement as well as its grievance procedures and grievance process to
address sex discrimination, including sexual harassment. Additionally,
Sec. 106.8(b)(1) allows inquiries about the application of Title IX
and this part to a recipient to be referred to the recipient's Title IX
Coordinator, to the Assistant Secretary, or both.
The Department disagrees with the suggestion that religious
exemptions are tools for bigotry or should not be provided due to such
characterizations. The First Amendment to the Constitution protects
religious exercise, and Congress placed a religious exemption in Title
IX and numerous other statutes. The Department's experience is that
exemptions for religious liberty overwhelmingly serve to advance
freedom and diversity in education, not bigotry. To the extent that an
official of a recipient invokes a religious exemption ``as a fig leaf''
in order to impose only personal beliefs, that recipient would not
qualify for a religious exemption because the religious exemption
requires the application of Title IX and its regulations to be
inconsistent with the religious tenets of a religious organization and
not just inconsistent with personal beliefs.
Changes: None.
Comments: Some commenters ascribed nefarious motives to the
Department. Commenters asserted that the people drafting the proposed
rules would not be in favor of religious exemptions if their wives,
mothers, or daughters were the victims of sexual assault. One stated
that honoring women and girls' rights is what Jesus calls for and
implied that the proposed regulations go against this principle. Some
commenters objected that the inclusion of religious exemptions is
clearly a political decision made by politicians in this administration
who seek to avoid accountability for their own sexual misconduct. Other
commenters stated that the drafters of the proposed rules do not have
the interests of students at heart, and that the proposed rules are
intentionally designed to institutionalize patriarchy and homophobia.
Other commenters stated that the inclusion of the religious exemption
provision was a political decision to curry favor with religious
institutions and warned the Department not to divide people. Another
commenter suggested that the provision was an effort by Secretary Betsy
DeVos to establish a Christian fascist nation that favors a
fundamentalist strain of Christianity.
Discussion: Although the Department appreciates the feedback on the
proposed rule, it rejects the assumptions of these commenters. As
stated above, the Department's goals for these final regulations are to
establish a grievance process that is rooted in due process principles
of notice and opportunity to be heard and that ensures impartiality
before unbiased officials. Specifically, these goals are to (i) improve
perceptions that Title IX sexual harassment allegations are resolved
fairly and reliably, (ii) avoid intentional or unintentional injection
of sex-based biases and stereotypes into Title IX proceedings, and
(iii) promote accurate, reliable outcomes, all of which effectuate the
purpose of Title IX to provide individuals with effective protection
from discriminatory practices, including remedies for sexual harassment
victims. As stated above, Sec. 106.12 reflects the statutory exemption
for religious educational institutions granted by Congress, and the
religious exemption applies only to the extent that the tenets of a
religious organization controlling a religious educational institution
conflict with the application of Title IX.
These final regulations apply to prohibit certain conduct and apply
to anyone who has experienced such conduct, irrespective of a person's
sexual identity or orientation. The Department believes that these
final regulations provide the best protections for all persons,
including women and people who identify as LGBTQ, in an education
program or activity of a recipient of Federal financial assistance who
experience sex discrimination, including sexual harassment.
[[Page 30479]]
Contrary to commenters' assertions, these final regulations do not
establish a religion, and Sec. 106.12(b) applies to all religions and
not just Christianity.
The Department disagrees that these final regulations are
patriarchal. These final regulations empower complainants with a choice
to consider and accept supportive measures that a recipient must offer
under Sec. 106.44(a) and/or to file a formal complaint to initiate a
grievance process under Sec. 106.45.
The Department does not seek to curry favor with a particular
population of recipients or individuals. The Department seeks to
effectuate Title IX's non-discrimination mandate consistent with the
U.S. Constitution, including the First Amendment, as well as other
Federal laws such as the Religious Freedom Restoration Act.
Changes: None.
Comments: Some commenters suggested that religious educational
institutions could manipulate the revisions to Sec. 106.12(b) to their
benefit. For instance, one commenter asserted that a school might wait
to see how a Title IX investigation by OCR is going, and then if OCR is
on the verge of issuing a finding in the case, the school might invoke
a religious exemption at the last minute. Other commenters stated that
a school might invoke a religious exemption as a way to retaliate
against students, or would abuse the ability to invoke a religious
exemption even when the school's tenets do not strictly contradict
Title IX. One commenter asserted that recipients of all religious
persuasions will suffer, when the public assumes that all religious
schools discriminate against students.
Another commenter suggested that OCR ought to closely scrutinize
claims of religious exemptions, and that schools should not receive any
deference when invoking a religious exemption or arguing that their
tenets conflict with Title IX. The commenter argued that this would be
like letting a corporation verify or change its own tax status while
being investigated by the Internal Revenue Service, e.g., moving to
non-profit status in the middle of a tax fraud investigation.
Discussion: The Department appreciates the feedback on the
potential policy implications of the proposed rules and believes that
some of the commenters misunderstand Sec. 106.12(b). Section 106.12(b)
states: ``In the event the Department notifies an institution that it
is under investigation for noncompliance with this part and the
institution wishes to assert an exemption set forth in paragraph (a) of
this section, the institution may at that time raise its exemption by
submitting in writing to the Assistant Secretary a statement by the
highest ranking official of the institution, identifying the provisions
of this part which conflict with a specific tenet of the religious
organization, whether or not the institution had previously sought
assurance of an exemption from the Assistant Secretary.'' When the
Department notifies a recipient that it is under investigation for
noncompliance with this part or a particular section of this part, the
recipient identifies the provisions of this part which conflict with a
specific tent of the religious organization. Of course, a recipient
must know what it is under investigation for, in order to assert an
applicable exemption such as a religious exemption. Nonetheless, a
recipient cannot invoke a religious exemption ``at the last minute''
because the recipient must be an educational institution which is
controlled by a religious organization, and such control by a religious
organization is not something that occurs ``at the last minute.'' The
educational institution must have been controlled by a religious
organization when the alleged noncompliance occurred, and the
educational institution is only exempt from Title IX and these final
regulations to the extent that Title IX or these final regulations are
not consistent with the religious tenets of such organization.
Additionally, retaliation is strictly prohibited under Sec.
106.71, and a recipient cannot invoke a religious exemption to
retaliate against a person. Similarly, a recipient may only assert an
exemption to the extent that Title IX or these regulations are not
consistent with the religious tenets of the religious organization that
controls an educational institution.
The Department is not aware of any assumption that all educational
institutions which are controlled by a religious organization engage in
discriminatory practices, and the Department's experience has not been
that all educational institutions which are controlled by a religious
organization engage in discriminatory practices.
Under long-standing OCR policy, OCR's practice is generally to
avoid questioning the tenet that an educational institution controlled
by a religious organization has invoked to cover the conduct at issue.
OCR does not believe it is in a position, generally, to scrutinize or
question a recipient's sincerely held religious beliefs, and the First
Amendment likely prohibits questioning the reasonableness of a
recipient's sincerely held religious beliefs. However, 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. These final regulations, including Sec. 106.12(b), make no
changes to the conditions that must apply in order for a religious
educational institution to qualify for the religious exemption.
Changes: None.
Comments: Some commenters stated that the Department failed to
adequately provide a rationale for changing current 34 CFR 106.12(b) in
the manner proposed in Sec. 106.12(b), and argued that the Department
failed to disclose the potential negative impacts of this change. The
commenters suggested that the proposed rules ought to more carefully
explain how compliance with Title IX is burdensome for religious
institutions, given that the current procedures, according to
commenters, are exceptionally generous to religious institutions.
Additionally, these commenters stated that the Department should
reassess the religious exemption to weigh more heavily a school's
potential to be dishonest and to discriminate.
Commenters stated that they favored what they considered to be
current OCR practice, under which, commenters asserted, most requests
for exemptions came by letter before a complaint was opened, and under
which OCR posts a publicly-available list of all schools that had
invoked an exemption. Commenters contended that the Obama-era approach
was popular among students and faculty, and was fair to all parties.
Commenters also suggested that a requirement to force religious
institutions to submit assurance requests ahead of time saves agency
resources for OCR, so the preamble's assertion that the prior practice
is confusing and burdensome is an absurd thing to say. Commenters
argued that proceeding with this rationale will mean violating the
Administrative Procedure Act, because the current procedures are not
confusing or burdensome, as set forth clearly in the current
regulation. Commenters argued that the current procedures require
religious institutions to establish which tenets of their religion are
in conflict with Title IX, whereas the proposed regulations would not
require schools to fully elaborate which of their tenets are
contradicted by Title IX.
Discussion: The Department appreciates the feedback on the
potential policy implications of the proposed rule. The Department
acknowledges that its practices in the
[[Page 30480]]
recent past regarding assertion of a religious exemption, including
delays in responding to inquiries about the religious exemption and
publicizing some requests for a religious exemption, may have caused
educational institutions to become reluctant to exercise their rights
under the Free Exercise Clause of the First Amendment, and the
Department would like educational institutions to fully and freely
enjoy rights guaranteed under the Free Exercise Clause of the U.S.
Constitution without shame or ridicule. The Department may be liable
for chilling a recipient's First Amendment rights and also is subject
to the Religious Freedom Restoration Act. The Department properly
engaged in this notice-and-comment rulemaking to clarify that the
Department, consistent with 20 U.S.C. 1681, will not place any
substantial burden on a recipient that wishes to assert the religious
exemption under Title IX.
The Department is giving due weight to Congress' express religious
exemption for recipients in Title IX, and Congress did not require a
recipient to first seek assurance of such a religious exemption from
the Department. The First Amendment and the Religious Freedom
Restoration Act, which apply to the Department as a Federal agency,
cause the Department to err on the side of caution in not hindering a
recipient's ability to exercise its constitutional rights.
Based on at least some commenters asserting that recipients needed
more clarity on the current regulations, the Department respectfully
disagrees with commenters arguing that confusion and burdens have not
resulted from the text of the current regulations. In any event, the
final regulations codify longstanding OCR practices, and are consistent
with the Title IX statute.
With respect to publishing a list of all recipients who have
received assurances from OCR, OCR declines to set forth any formal
policy in the final regulations. Such lists are necessarily incomplete,
since they do not adequately describe the scope of every exemption, and
because many recipients that are eligible for religious exemptions may
nevertheless not seek assurance letters from OCR. However, nothing in
the final regulations addresses publishing such a list, one way or
another. In any event, correspondence between OCR and recipient
institutions, including correspondence addressing religious exemptions,
is subject to Freedom of Information Act requirements.
Changes: None.
Comments: Commenters argued that OCR's practice regarding religious
exemptions has worked since 1975, and that the time period between 1975
and the present day spans numerous presidencies across both Democrat
and Republican administrations. One commenter stated that no religious
exemption request has ever been denied, so addressing this topic in
formal rulemaking is unnecessary.
Commenters contended that the change to the text of the religious
exemption regulation is not responsive to any specific issue or wrong,
and that the current regulation appropriately burdens the institution,
as opposed to students.
Commenters also stated that the revisions to Sec. 106.12(b) would
largely remove the Department and OCR out of the religious exemption
process, since students may not challenge a school's assertion of a
religious exemption during the school's handling of a complaint. That
would be problematic, asserted commenters, because students would be
blindsided by assertions of exemptions that have not yet been evaluated
or ruled on by the Department and OCR, so a student challenging an
exemption, asserted commenters, would have their complaint ignored or
stayed while they waited for OCR to rule on the validity of the
exemption assertion.
Commenters suggested that placing the burden on a party not
invoking the exemption is discordant with other areas of law, such as
many States' requirement that parents submit a religious objection to
immunizations in writing, or that an entity bear the burden of
establishing its entitlement to tax-exempt status. Indeed, say the
commenters, the Department administers the Clery Act, which is another
statute that burdens schools by requiring them to collect and report
information.
Discussion: The Department disagrees with commenters that assert
Sec. 106.12(b) should not be part of this notice-and-comment
rulemaking. Some commenters have asserted that the current Sec.
106.12(b) has caused confusion, and the Department wishes to clarify
that neither Title IX nor these final regulations require a recipient
to request an assurance of a religious exemption under 20 U.S.C.
1681(a)(3). Additionally, the Department wishes to avoid liability
under the First Amendment and the Religious Freedom Restoration Act,
and to the extent that Sec. 106.12(b) may be ambiguous or vague, the
Department would like to take this opportunity to revise Sec.
106.12(b) to be even more consistent with Title IX, the First
Amendment, and the Religious Freedom Restoration Act.
Section 106.12(b) as proposed and as included in these final
regulations does not burden students as the recipient must still invoke
the exemption. Indeed, a recipient must still demonstrate that it is an
educational institution which is controlled by a religious organization
and that the application of Title IX or its implementing regulations
would not be consistent with the religious tenets of such organization.
The student does not bear the burden with respect to the religious
exemption.
The Department also disagrees that a complaint is placed on hold
while the Department considers a recipient's religious exemption. The
Department processes complaints in the normal course of business and
will consider any religious exemption in the normal course of an
investigation just as it considers other exemptions under Title IX
during an investigation. Accordingly, a student will not suffer from
any delays in the Department's processing of a complaint as a result of
the revisions to Sec. 106.12(b).
There also should not be any delays with respect to the recipient's
processing of a student's complaint such as a formal complaint under
Sec. Sec. 106.44 and 106.45. Section 106.44(a) requires a recipient
with actual knowledge of sexual harassment in an education program or
activity of the recipient against a person in the United States to
respond promptly in a manner that is not deliberately indifferent.
Section 106.12(b) clarifies that a recipient does not need to submit a
statement in writing to the Assistant Secretary to assert a religious
exemption before asserting an exemption and, thus, there is no need for
the Department to intervene or delay any complaint of sex
discrimination, including a formal complaint of sexual harassment, that
the recipient is processing to determine whether the recipient
qualifies for a religious exemption.
Students should not be blindsided and may always inquire about the
application of Title IX and its implementing regulations to the
recipient's Title IX Coordinator, to the Assistant Secretary, or both.
Additionally, a recipient that is an educational institution must be
controlled by a religious organization in order to assert an exemption
under Title IX, 20 U.S.C. 1681(a)(3), and students likely will know
whether the educational institution is controlled by a religious
organization.
The Department reiterates that the burden remains on the recipient
to establish and assert a religious exemption to Title IX, 20 U.S.C.
1681(a)(3). Congress expressly requires
[[Page 30481]]
postsecondary institutions that receive Federal student financial aid
through the programs authorized by Title IV of the Higher Education Act
of 1965, as amended, to make certain reports, including reports to the
Department. The Department's regulations, implementing the Clery Act,
address the reporting requirements that Congress enacted. Congress,
however, did not require educational institutions to report a religious
exemption to the public or to the Department under Title IX, and the
Department declines to impose any burden on the constitutional rights
of recipients of Federal financial assistance that Congress did not
impose. Additionally, as previously explained, the First Amendment and
the Religious Freedom Restoration Act may prohibit any such additional
burdens.
Changes: None.
Comments: One commenter objected to any form of assurance letter
being sent by OCR, on the basis that such a process caused an undue
entanglement with religion. The commenter suggested that the statute
simply apply on its own terms, without the need for OCR to closely
scrutinize the tenets of a religious educational institution.
Discussion: The Department appreciates feedback on the proposed
rule. The process of applying to OCR for an assurance letter is
entirely optional, and nothing in the final regulations requires a
school to obtain an assurance letter prior to invoking a religious
exemption. The Department therefore sees no entanglement problem in
allowing recipients to request an assurance letter, and generally
avoids scrutinizing or questioning the theological tenets or sincerely
held religious beliefs of a recipient that invokes the religious
exemption in Title IX.\1727\
---------------------------------------------------------------------------
\1727\ 20 U.S.C. 1681(a)(3).
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters asserted that the final regulations
ought to be changed such that recipients are not entitled to religious
exemptions under Title IX. Some commenters stated that the topic of
religious exemptions might not be a significant one, and that it was
unclear how many recipients had truly avoided an investigation or
finding under Title IX due to a religious exemption. The commenter
suggested that instead of modifying the regulations, the better course
would be to study the issue further and determine how many recipients
had successfully invoked a religious exemption to avoid a Title IX
compliance issue in the last three to five years.
Discussion: The Department appreciates the feedback on Sec.
106.12(b) but does not believe it is necessary to examine OCR records
to report on how many recipients have successfully invoked a religious
exemption under Title IX. This is because the Title IX statute provides
a religious exemption for recipients, and the Department cannot
eliminate the religious exemption in the Title IX statute through its
regulations. In any event, the final regulations codify longstanding
OCR practices, and both the final regulations and OCR practice are
consistent with the Title IX statute.
Changes: None.
Comments: A commenter suggested that part of the process ought to
be a publication of a book by OCR that contains the full list of
recipients that have obtained an assurance letter. Some commenters
suggested, apart from a book, that OCR ought to publish on its website
a list of all recipients that have obtained a religious exemption
assurance letter. Another commenter suggested that OCR at least require
recipients to inform a student who has filed a complaint that the
recipient has invoked a religious exemption, particularly if no
assurance letter has been previously requested. These measures,
asserted commenters, would increase transparency for students and
employees who may attend or work for educational institutions that
maintain exemptions from Title IX.
Discussion: The Department appreciates the feedback on the proposed
rule. When OCR receives a complaint involving a recipient that invokes
a religious exemption, OCR will proceed in accordance with OCR's Case
Processing Manual, including with respect to notifying a complainant
that the recipient has invoked a religious exemption. OCR's current
practice does not require OCR to keep a complainant apprised of
developments in an ongoing investigation of a recipient, and the
Department has not proposed any procedural changes to the manner in
which it processes complaints in this notice-and-comment rulemaking so
as to give the public notice to comment on such a proposal. A
complainant currently receives the opportunity to appeal the
Department's determination with respect to a complaint or the dismissal
of a complaint and may raise any concerns about a recipient's religious
exemption as well as other matters on appeal.\1728\ The Department does
not wish to treat a religious exemption, which Title IX provides and
which the Department is required to honor under Title IX and in abiding
by the First Amendment and the Religious Freedom Restoration Act,
differently than any other exemption from Title IX that a recipient may
invoke. Title IX provides exemptions other than a religious exemption
in 20 U.S.C. 1681(a) (e.g., exemptions for membership policies of
social fraternities or sororities, father-son or mother-daughter
activities, scholarship awards in ``beauty'' pageants). The Department
does not notify a complainant of a recipient's invocation of other
exemptions provided in Title IX when the Department is processing a
complaint and declines to do so for a religious exemption. Nothing in
the final regulations prevents a recipient from informing the
complainant of its invocation of a religious exemption. The Department
notes that any person may direct an inquiry about the application of
Title IX to a particular recipient to the recipient's Title IX
Coordinator, the Assistant Secretary, or both, pursuant to Sec.
106.8(b)(1).
---------------------------------------------------------------------------
\1728\ U.S. Dep't. of Education, Office for Civil Rights, Case
Processing Manual Sec. 307 Appeals, https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf.
---------------------------------------------------------------------------
On the subject of OCR publishing a book, list of names, or copies
of the assurance letters that have been provided to recipients that
address a recipient's eligibility for a religious exemption, the
Department often posts such correspondence on the OCR website.
Additionally, such documents are subject to Freedom of Information Act
requests, and attendant rules regarding public disclosure of commonly-
requested documents. The Department does not believe that publishing a
book or a list of names of recipients that have asserted eligibility
for a religious exemption is necessary, and the final regulations do
not address that issue, one way or another.
Changes: None.
Comments: Some commenters stated that they would prefer the
Department to at least encourage recipients to post information about
Title IX religious exemptions on the recipient's website, so that
people who are actively looking for that information can find it
easily. Other commenters suggested that a recipient maintaining a
religious exemption ought to be compelled to publish such information
in their materials and policies, i.e., a student handbook, or a
website.
Discussion: The Department generally does not include in its
regulations specific types of advice or encouragement for recipients
and believes that the Title IX statute and Sec. 106.12 appropriately
guide recipients
[[Page 30482]]
as to the scope and application of the religious exemption under Title
IX.
The Department does not require recipients to publish any
exemptions from Title IX under 20 U.S.C. 1681(a)(3) that may apply to
the recipient and does not wish to single out the religious exemption
for special or different treatment. The Department believes that the
requirements in these final regulations provide sufficient
transparency. As previously stated, Sec. 106.8 requires all recipients
to notify applicants for admission and employment, students, parents or
legal guardians of elementary and secondary school students, employees,
and all unions or professional organizations holding collective
bargaining or professional agreements with the recipient of its notice
of non-discrimination on the basis of sex as well as its grievance
procedures and grievance process, including how to report or file a
complaint of sex discrimination, how to report or file a formal
complaint of sexual harassment, and how the recipient will respond.
Additionally, Sec. 106.8(b)(2)(ii) provides that 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 these final
regulations. Accordingly, students and prospective students should
receive adequate notice of the recipient's non-discrimination statement
as well as its grievance procedures and grievance process regarding sex
discrimination, including sexual harassment, and such notice is
consistent with due process principles. Such transparency helps guard
against any misunderstandings, irrespective of whether a school asserts
a religious exemption.
The religious exemption in Title IX, 20 U.S.C. 1681(a)(3), applies
to an educational institution which is controlled by a religious
organization, and students and prospective students likely will know
whether an educational institution is controlled by a religious
organization so as not to be surprised by a recipient's assertion of
such a religious exemption. Additionally, the Department also notes
that under Sec. 106.8(b)(1) any person can inquire about the
application of Title IX to a particular recipient by inquiring with the
recipient's Title IX Coordinator, the Assistant Secretary, or both.
Changes: None.
Comments: Some commenters suggested that the religious exemptions
language be altered, to carve out conduct that would be considered a
crime. Other commenters suggested that the Department should clarify
how a school that maintains a religious exemption ought to interact
with a school that does not maintain a religious exemption, if an
incident involves two students, one from each type of school.
Specifically, a commenter asked whether a school with a religious
exemption has a duty to cooperate with another school that was
investigating a Title IX incident involving one of its students.
Another commenter asked the Department to clarify whether a recipient
that invoked a religious exemption still had the duty to provide the
full extent of the grievance procedures in Sec. 106.45.
Discussion: The Department appreciates these nuanced questions
about how recipients can comply with the final regulations under
specific fact patterns. Generally, religious exemptions cannot be
invoked to avoid punishment for criminal activity, and absent a
specific example, the Department believes asserting a religious
exemption to avoid punishment for a crime is unrealistic under Title
IX. In any event, the Department does not punish recipients for
criminal activity. The Department enforces the non-discrimination
mandate in Title IX, which prohibits discrimination on the basis of
sex.
With respect to the other factual scenarios that commenters
present, the Department and OCR are willing to provide technical
assistance to recipients who seek answers to individual factual
circumstances, or to stakeholders who may file complaints against
recipients eligible for religious exemptions, but we do not believe it
is appropriate to attempt to answer these questions at this stage and
without the benefit of a complete set of facts.
As with any regulation under Title IX, including Sec. 106.45, an
educational institution that is controlled by a religious institution
is exempt from Title IX or its implementing regulations only to the
extent that Title IX or one of its implementing regulations would not
be consistent with the religious tenets of such organization.
Changes: None.
Comments: One commenter suggested a minor revision to Sec.
106.12(b) to make clear that any future claims of institutional
religious exemption under the proposed regulations are not
predetermined by the scope or nature of any prior claims submitted in
writing to the Assistant Secretary: ``. . . whether or not the
institution had previously sought assurance of the an exemption from
the Assistant Secretary as to that provision or any other provision of
this part.''
Discussion: The Department agrees with the reasoning behind this
change and changes ``the'' to ``an'' as the commenter suggested. The
Department does not believe the commenter's other suggested phrase,
``as to that provision or any other provision of this part'' is
necessary to adequately explain the scope and application of this
provision.
Changes: The word ``the'' has been changed to ``an'' in the final
sentence of Sec. 106.12(b) of the final regulations.
Comments: One commenter suggested that the Department ought to go
beyond the proposed rule, and promulgate a definition for what it means
to be ``controlled by a religious organization,'' so that recipients
and the public would know which institutions are in fact eligible for
religious exemptions, since there has been confusion previously.
Additionally, the commenter asked that the definition take account of
and be consistent with Supreme Court case law interpreting the
Establishment Clause of the First Amendment.
Discussion: Although the Department appreciates this feedback, it
declines to make any changes to these final regulations because the
scope of proposed changes to Sec. 106.12 was limited by the
Department's proposal to change Sec. 106.12(b) but not subsection (a).
The Department decided to address what it means to be controlled by a
religious organization for purposes of the religious exemption in Title
IX through a subsequent notice of proposed rulemaking.\1729\ The
Department will continue to offer technical assistance regarding
compliance with these final regulations.
---------------------------------------------------------------------------
\1729\ 85 FR 3190.
---------------------------------------------------------------------------
Changes: None.
Directed Questions \1730\
---------------------------------------------------------------------------
\1730\ The Department addresses comments submitted in response
to the NPRM's Directed Questions 3-4, and 6-9, throughout sections
of this preamble to which such directed questions pertain. For
example, Directed Question 3 inquired about applicability to the
proposed rules to employees, and comments responsive to that
directed question are addressed in the ``Section 106.6(f) Title VII
and Directed Question 3 (Application to Employees)'' subsection of
the ``Clarifying Amendments to Existing Regulations'' section of
this preamble.
---------------------------------------------------------------------------
Directed Question 1: Application to Elementary and Secondary Schools
Comments: Some commenters commended the proposed rules for
including elementary and secondary schools, suggesting that their
inclusion would have a positive impact on these schools for Title IX
purposes. Another commenter asserted that elementary and secondary
schools, too, have sexual harassment issues that they must confront; it
is not only a problem in
[[Page 30483]]
postsecondary institutions. One commenter asserted that it was good to
have different Title IX approaches for elementary and secondary schools
as opposed to postsecondary institutions, since some procedures are
appropriate for postsecondary institutions, but may not work for
elementary and secondary schools; the commenter pointed to live
hearings for postsecondary institutions but no hearing requirement for
elementary and secondary schools as a good example of recognizing the
differences between elementary and secondary education (ESE) and
postsecondary education (PSE) contexts. Another commenter argued that
elementary and secondary schools need flexibility to address sexual
harassment issues that arise involving younger students.
Discussion: The Department appreciates this feedback on the
proposed rules. The Department agrees with commenters that some
procedures are more appropriate for postsecondary institutions but not
for other recipients, including elementary and secondary schools, and
the final regulations reflect such differences. For example, Sec.
106.30 defines ``actual knowledge'' more broadly in elementary and
secondary schools and Sec. 106.45(b)(6)(ii) does not require live
hearings or cross-examination procedures for recipients who are not
postsecondary institutions.
Changes: We have revised Sec. 106.30 defining ``actual
knowledge,'' to include notice to any elementary and secondary school
employee; and we have clarified the language in Sec. 106.45(b)(6)(ii)
to more expressly state that unlike postsecondary institutions,
elementary and secondary schools are not required to hold hearings as
part of the grievance process.
Comments: Some commenters argued that the proposed rules ought to
make additional distinctions between ESE students and PSE students.
These distinctions, commenters asserted, should include removing the
presumption of non-responsibility for students accused of sexual
harassment in ESE contexts. Commenters argued that schools at the ESE
level ought to be able to presume, in some cases, that a student is
responsible for sexual harassment, or at least that no presumption
ought to exist in any direction. Commenters argued that this was
necessary because schools need to react to time-sensitive situations
and exclude accused students or employees from the school atmosphere
without having to go through the extensive grievance procedures
contemplated by the proposed rule. Commenters also suggested that
offering supportive measures was often time-sensitive, such that a full
grievance process is not appropriate. Other commenters supported
significantly abbreviating the grievance procedures, on the basis that
a full process was unworkable at the ESE level. Some commenters
expressed concern that younger students would be put at a higher risk
for sexual violence, because they might not know the types of touching
that are appropriate or inappropriate to come forward to the designated
school employee on their own.
Discussion: The Department appreciates this feedback. The
Department agrees that schools must have effective tools for responding
to allegations of sexual harassment, and the final regulations protect
this interest. The final regulations are designed to promote
predictability and a clear understanding of every recipient's legal
obligations to respond to sexual harassment incidents, including
promptly offering supportive measures to a complainant (i.e., a person
alleged to be the victim of sexual harassment) whenever any ESE
employee has notice of sexual harassment or allegations of sexual
harassment. One of the ways in which these final regulations
differentiate between ESE and PSE students is recognizing that ESE
students cannot reasonably be expected to report sexual harassment only
to certain school officials, or even teachers, and that ESE recipients
and their employees stand in a special relationship regarding their
students, captured by the legal doctrine that school districts act in
loco parentis with respect to authority over, and responsibility for,
their students. Thus, the final regulations (at Sec. 106.30 defining
``actual knowledge'') trigger an ESE recipient's response obligations
any time an ESE employee has notice of sexual harassment. These final
regulations obligate all recipients to promptly reach out to each
complainant (i.e., a person alleged to be the victim of conduct that
could constitute sexual harassment, regardless of who actually
witnessed or reported the sexual harassment) and offer supportive
measures, under Sec. 106.44(a). These final regulations (at Sec.
106.6(g)) also expressly acknowledge the importance of respecting the
legal rights of parents or guardians to act on behalf of students in a
Title IX matter, including but not limited to the choice to file a
formal complaint asking the school to investigate sexual harassment
allegations. These final regulations define ``supportive measures'' in
Sec. 106.30 in a manner that gives ESE recipients wide discretion to
quickly, effectively take steps to protect student safety, deter sexual
harassment, and preserve a complainant's equal educational access. As
discussed in the ``Supportive Measures'' subsection of the ``Section
106.30 Definitions'' section of this preamble, supportive measures
cannot ``unreasonably burden'' the respondent but this does not mean
that supportive measures cannot place any burden on a respondent, so
actions such as changing a respondent's class or activity schedule may
fall under permissible supportive measures, and supportive measures
must be offered without waiting to see if a grievance process is
eventually initiated or not. Recipients also retain the authority to
remove a respondent from education programs or activities on an
emergency basis if the respondent presents an imminent threat to the
physical health or safety of any individual, under Sec. 106.44(c). We
also reiterate that many actions commonly taken in the ESE context are
not restricted under these final regulations; while a recipient may not
punish or discipline a respondent without complying with the Sec.
106.45 grievance process, actions such as holding an educational
conversation with a respondent, explaining to the respondent in detail
the recipient's anti-sexual harassment policy and code of conduct
expectations, and similar actions are not restricted unless paired with
actions that are punitive, disciplinary, or unreasonably burdensome to
the respondent.
We disagree that a presumption of non-responsibility \1731\ is less
important for respondents in the ESE context than in the PSE context,
because the presumption serves to reinforce that a recipient must not
treat a respondent as responsible for Title IX sexual harassment unless
such allegations have been proved or otherwise resolved under a process
that complies with Sec. 106.45, but as discussed above, this leaves
wide flexibility for recipients to address the need for complainants'
equal educational access, protect safety, and deter sexual harassment,
while a grievance process is pending or without any grievance pending.
---------------------------------------------------------------------------
\1731\ For further discussion see the ``Section 106.45(b)(1)(iv)
Presumption of Non-Responsibility'' subsection of the ``General
Requirements for Sec. 106.45 Grievance Process'' subsection of the
``Section 106.45 Recipient's Response to Formal Complaints'' section
of this preamble.
---------------------------------------------------------------------------
Changes: None.
Comments: Many commenters argued that the grievance procedures in
the NPRM generally do not work well for ESE recipients. Commenters
argued that
[[Page 30484]]
schools need to take swift action in the ESE setting, since young
children are at particular risk of further harm. Commenters also argued
that live hearings with cross-examination should not occur where young
children are involved. The prospect of an employee or the employee's
advisor cross-examining a student in cases where a school opted to
allow live hearings troubled some commenters. Some stated that prior
written notice should not be required at the ESE level for every
investigative interview. Commenters stated that these were flaws in the
proposed rules that stemmed from the Department not adequately
considering how differences in structure and populations affect Title
IX enforcement, as between ESE and PSE contexts.
Commenters contended that the extensive due process protections in
the proposed rules would have the consequence of making school
proceedings more intimidating for victims. They stated that setting up
what amounts to an expressly adversarial process between students at
ESEs is inappropriate. Some commenters argued that even referring to
students as ``complainants'' and ``respondents'' had the unfortunate
effect of creating litigation-like settings in ESE schools, and argued
that the proposed rules would require significantly more process than
what is required by the Supreme Court.\1732\ Commenters also stated
that students themselves will be confused by the proposed rules, and
many will need to hire legal counsel in order to fully understand their
rights. Commenters argued that sexual harassment incidents
disproportionately affect Black students and transgender students, so
the proposed rules would hurt them especially.
---------------------------------------------------------------------------
\1732\ Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975).
---------------------------------------------------------------------------
Some commenters argued that cases at the ESE level should never be
subject to a clear and convincing evidence standard of evidence, yet
the proposed rules would allow a recipient to choose that standard for
resolving allegations of sexual harassment. Some stated that schools,
especially underfunded schools, would not be able to afford many of the
evidence-sharing provisions of the proposed rules, or the requirement
that the investigator be a different person than the person who
adjudicates a claim of sexual harassment. Commenters argued that many
schools would be destroyed by having to comply with the proposed rules.
Some commenters objected to the requirement that every determination
regarding responsibility for sexual harassment needed to be accompanied
by specific findings and a written report, arguing that such a burden
was too onerous for ESE schools. Some contended that poorer schools
needed to rely on the single investigator model--as opposed to separate
individuals being the Title IX Coordinator, the investigator, and the
decision-maker for discipline--and that the proposed rules are
unworkable at the ESE level. Other commenters contended that having to
explain why each question is or is not asked during a hearing, if it
occurs, will be cumbersome and unnecessary.
Aside from the issue of financial burden, some commenters argued
that the proposed rules were likely to cause confusion for school
personnel, many of whom are not lawyers and who are not trained to
administer or prepare for adversarial proceedings. The commenters
argued that school officials will often make mistakes, and that
confidence in the system will deteriorate to the point that students
will opt not to report instances of sexual harassment. Commenters
argued that the proposed rules insufficiently consider that schools
know best how to handle their own students, and that imposing these
burdens is not necessary to resolve claims of sexual harassment.
Some commenters argued that even if recipients were able to
implement the new grievance procedures properly, there would still be
negative consequences for students and schools. For instance, some
commenters argued that the grievance procedures are subject to
manipulation, especially when students with financial resources are
able to take advantage of the procedures against other students who may
lack similar resources. Other commenters suggested that frequent
dissatisfaction with the processes or with outcomes would lead to
litigation in court. These commenters also argued that full compliance
with these final regulations at the ESE level will be expensive and
would outweigh any savings.
Other commenters took issue with the informal resolution provisions
of the proposed rules, stating that mediation is never appropriate at
the ESE level, particularly if there are few requirements surrounding
the content of the mediation or if the underlying allegation involves
sexual assault. Commenters stated that since the informal resolution
process can end the investigation into allegations of sexual
harassment, it is problematic to rely on a student's willingness to
object to informal resolution--and to insist on the formal grievance
procedures--to adequately cause the school to respond to sexual
harassment. Other commenters stated that forms of informal resolution
like mediation are inherently traumatic for victims of sexual
harassment, and some argued that mediation generally utilizes ``rape
myths'' and ``victim-blaming language'' that ought to be avoided.
Many commenters wanted the Department to expand the scope of the
individuals whose knowledge could give rise to a school's duty to
respond to sexual harassment. Some commenters expressed concern that
students do not know who might have authority to institute corrective
measures and who does not, per the scope of the proposed rules. Some
commenters suggested that at least mandatory reporters should be
covered. Other commenters argued that regardless of who receives
information about sexual harassment, the appropriate response is a
``trauma-informed'' response, such that the person who alleges sexual
harassment ought to be believed from the outset.
The net of all of these issues, argued commenters, was that
educational environments and learning would suffer. Schools would have
difficulty effectively responding to sexual harassment, and preventing
future incidents, asserted commenters. Commenters contended that the
proposed rules would discourage young vulnerable students from
reporting instances of sexual harassment, out of fear that they might
have to endure lengthy and onerous procedures while trying to still
maintain their academic progress.
Discussion: The Department appreciates this feedback. The
Department is promulgating consistent, predictable rules for recipients
who must respond to allegations of sexual harassment, and has balanced
the strong need to protect students from sexual harassment and the need
to ensure that adequate processes are in place. The Department agrees
with commenters who stated that the types of school personnel to whom
notice should charge a recipient with ``actual knowledge'' in the ESE
context should be expanded. As discussed in the ``Adoption and Adaption
of the Supreme Court's Framework to Address Sexual Harassment'' section
and the ``Actual Knowledge'' subsection of the ``Section 106.30
Definitions'' section of this preamble, we have revised the final
regulations to provide that notice to any elementary or secondary
school employee triggers the ESE recipient's response obligations.
Within the confines of these final regulations, recipients may
adjust their
[[Page 30485]]
procedures to minimize the amount of resources that must be spent with
respect to each allegation of sexual harassment. The final regulations
allow recipients the discretion to facilitate an informal resolution
process,\1733\ and permit each recipient to conduct the grievance
process under time frames the recipient has designated as reasonable
for an ESE environment.\1734\ For emergencies posing imminent risks to
any individual's safety recipients may, consistent with the terms of
the final regulations, invoke emergency removal procedures.\1735\
---------------------------------------------------------------------------
\1733\ Section 106.45(b)(9) allows recipients to facilitate
informal resolution of formal complaints, except as to allegations
that an employee sexually harassed a student. We understand that
some commenters, including some recipients, do not believe that
informal resolution is appropriate at all in the ESE context, or is
not appropriate for sexual assault allegations, and the final
regulations allow each recipient to choose whether to offer any
informal resolution processes at all.
\1734\ Section 106.45(b)(1)(v).
\1735\ Section 106.44(c).
---------------------------------------------------------------------------
The Department disagrees that the final regulations are unworkable
in the ESE environment, or that they will destroy recipients who must
abide by them. Instead, the final regulations offer significant
flexibility to recipients, while still maintaining the appropriate
balance between a recipient's duty to respond to allegations of sexual
harassment and its duty to ensure due process protections that benefit
both complainants and respondents.\1736\ Additionally, the Department
expects that significant efficiencies will result, and the cost to
implement required procedures will be reduced, as students, employees,
and school personnel interact with consistent and predictable rules. To
the extent that a recipient needs the advice of legal counsel to
understand its duties, it will be easier for counsel to advise them on
the requirements of concrete rules published in regulations than on
Department guidance that does not represent legally binding
obligations. What may be a cumbersome new procedure at first may soon
become routine, and reduce confusion, as a recipient responds to all of
its Title IX formal complaints with specific procedures. At the same
time, many recommendations and best practices found in Department
guidance remain viable policies and procedures for recipients while
also complying with these final regulations, so the Department
anticipates that not all recipients will find the need to change their
current Title IX policies and procedures wholesale. For further
discussion of the similarities and differences among these final
regulations and Department guidance documents, see the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section and ``Role of Due Process in the Grievance
Process'' section of this preamble.
---------------------------------------------------------------------------
\1736\ For further discussion see the ``Adoption and Adaption of
the Supreme Court's Framework to Address Sexual Harassment'' section
and ``Role of Due Process in the Grievance Process'' section of this
preamble.
---------------------------------------------------------------------------
As to live hearings with cross-examination, we have clarified the
language in the final regulations to emphasize that ESE recipients are
not required to use a hearing model to adjudicate formal complaints of
sexual harassment under these final regulations. Moreover, if an ESE
recipient chooses to use a hearing model, that recipient does not then
need to comply with the provisions in Sec. 106.45(b)(6)(i), which
applies only to postsecondary institution recipients. For further
discussion see the ``Section 106.45(b)(6)(ii) Elementary and Secondary
School May Require Hearing and Must Have Opportunity to Submit Written
Questions'' subsection of the ``Hearings'' subsection of the ``Section
106.45 Recipient's Response to Formal Complaints'' section of this
preamble. Nothing prevents schools from counseling students as to how
the grievance procedures will work, or aiding and assisting the
parties, on an equal basis, with additional supports as they go through
the process. Additionally, many provisions of the final regulations
require only that schools provide an equal opportunity to the parties,
leave the recipient flexibility to the extent that a recipient would
prefer to make the grievance process less formal or intimidating for
students. We have also added Sec. 106.6(g) in the final regulations,
acknowledging the legal rights of parents or guardians to act on behalf
of complainants, respondents, or other individuals with respect to
exercising rights under Title IX, including participation in a
grievance process.
The Department disagrees that the final regulations will deter
reporting, since having consistent, predictable rules for Title IX
proceedings will likely make them less intimidating for ESE students
and their parents, and students or employees may gain confidence in a
process that expressly allows the complainant to choose whether
reporting leads only to supportive measures or also leads to a
grievance process.\1737\ Indeed, the Department believes that having
predictable rules will encourage reporting by students or their
parents, and ensure that students and employees who allege sexual
harassment will not have to wonder how they will be treated upon
reporting. As described in the ``Deliberate Indifference'' subsection
of the ``Adoption and Adaption of the Supreme Court's Framework to
Address Sexual Harassment'' section of this preamble, we have
significantly revised Sec. 106.8 and Sec. 106.44(a) to emphasize that
reporting sexual harassment is the right of any complainant (or third
party, including a complainant's parent) and recipients must offer
supportive measures to every complainant (i.e., person alleged to be
the victim of sexual harassment), regardless of whether a grievance
process is also initiated against a respondent.
---------------------------------------------------------------------------
\1737\ Section 106.44(a); Sec. 106.30 (defining ``formal
complaint'').
---------------------------------------------------------------------------
The Department also disagrees that parties with significant
financial resources will be able to manipulate the grievance process in
an unjust manner any more than any other Title IX grievance procedures
established in response to Department guidance, since the final
regulations provide for meaningful participation of both parties at
every stage in a grievance process. The grievance process is designed
for students (including, as legally applicable, parents acting on
behalf of their children) \1738\ to navigate without legal
representation, though every party has the right to an advisor of
choice who may be, but need not be, an attorney.\1739\ The Department
believes that one way to mitigate the possibility of a party unfairly
using financial resources is to grant both complainants and respondents
strong procedural rights (including the right to assistance and advice
from an advisor of the party's choosing) as they engage in the process.
---------------------------------------------------------------------------
\1738\ Section 106.6(g).
\1739\ Section 106.45(b)(5)(iv).
---------------------------------------------------------------------------
The Department agrees that schools themselves know best how to
engage with their students, and recipients are encouraged to use their
discretion and expertise within the confines of the final regulations.
This includes what training to give to ESE employees regarding
reporting sexual harassment to the Title IX Coordinator (knowing that
notice to any ESE employee triggers the recipient's response
obligations under these final regulations), what training to give the
Title IX Coordinator with respect to circumstances that might justify
the Title IX Coordinator deciding to sign a formal complaint in
situations where the complainant (and complainant's parent, as
applicable) does not want the recipient to investigate allegations,
which
[[Page 30486]]
supportive measures may be appropriate in certain circumstances, what
time frames to designate for completion of a grievance process, the use
of age-appropriate explanatory language in the written notices that
must be sent to parties under Sec. 106.45, what standard of evidence
to apply to resolving formal complaints, whether to use the Title IX
Coordinator as the investigator or separate those roles, whether to use
informal resolution, whether to offer grounds for appeal in addition to
those required under Sec. 106.45, the selection of remedies for a
complainant where a respondent is found responsible for sexual
harassment, and the choice of disciplinary sanctions against a
respondent who is found responsible. The foregoing illustrations of
discretion that ESE recipients possess is in addition to the ability of
ESE recipients to address conduct that does not meet the definition of
sexual harassment as defined in Sec. 106.30, as well as other types of
student misconduct, outside the confines of these final regulations;
these final regulations apply only when the conditions of Sec.
106.44(a) are present (i.e., an ESE employee has notice of conduct that
could constitute sexual harassment as defined in Sec. 106.30, that
occurred in the recipient's education program or activity, against a
person in the United States). The Sec. 106.45 grievance process is a
required part of the recipient's response only when the recipient is in
receipt of a formal complaint (as defined in Sec. 106.30), which must
either be filed by a complainant (i.e., the person alleged to be the
victim of sexual harassment, or a parent or guardian legally entitled
to act on that person's behalf) or signed by the Title IX Coordinator.
In the absence of a formal complaint, the recipient's response must
consist of offering supportive measures designed to preserve the
complainant's equal access to education, as well as to protect the
safety of all parties or deter sexual harassment. The Department does
not believe that the final regulations present unduly burdensome, much
less insurmountable, obstacles for ESE recipients to fulfill every
recipient's obligation to supportively and fairly address sexual
harassment in a recipient's education programs or activities.
The Department disagrees that informal resolution is never
appropriate for ESE institutions, or that ESE recipients may never use
it in the context of allegations of sexual assault. In these cases, the
final regulations provide adequate limitations and protections for
parties regarding the use of informal resolutions, and we reiterate
that the final regulations do not mandate that any recipient offer or
facilitate information resolution processes.\1740\
---------------------------------------------------------------------------
\1740\ Section 106.45(b)(9).
---------------------------------------------------------------------------
For the reasons explained in the ``Section 106.45(b)(7)(i) Standard
of Evidence and Directed Question 6'' subsection of the
``Determinations Regarding Responsibility'' subsection of the ``Section
106.45 Recipient's Response to Formal Complaints'' section of this
preamble, the Department disagrees that the clear and convincing
evidence standard of evidence is never appropriate in the ESE setting,
such that no ESE recipient should ever be able to adopt that standard
to resolve formal complaints of sexual harassment.
Changes: None.
Comments: Commenters argued that students should not have to wait
weeks, if not months, for adjudications of and responses to their
allegations of sexual harassment. Lack of timely resolution would be
made worse, some commenters argued, by the fact that the grievance
process can be delayed for law enforcement investigations. Commenters
argued that because nearly all sexual harassment allegations in the ESE
context will require law enforcement intervention, the proposed rules
would result in frequent, significantly delayed processes in the ESE
context.
Discussion: The Department appreciates this feedback and discusses
these concerns in the ``Section 106.45(b)(1)(v) Reasonably Prompt Time
Frames'' subsection of the ``General Requirements for Sec. 106.45
Grievance Process'' subsection of the ``Section 106.45 Recipient's
Response to Formal Complaints'' section of this preamble. We reiterate
here that the final regulations do not require a recipient to delay a
Title IX grievance process while a law enforcement investigation is
pending; rather, Sec. 106.45(b)(1)(v), only permits a recipient to
provide for short-term delays or extensions of the recipient's own
designated, reasonably prompt time frame for conclusion of the
grievance process, when such short-term delay or extension is based on
``good cause,'' and that provision gives as an example of good cause,
concurrent law enforcement activity. ``Good cause'' under these final
regulations would not justify a long or indefinite delay or extension
of time frames for concluding the Title IX grievance process,
regardless of whether a law enforcement investigation is still pending.
Additionally, we reiterate that under Sec. 106.44 a recipient's
prompt response to every complainant (once a recipient is on notice
that a complainant has been victimized by sexual harassment) is
triggered with or without the filing of a formal complaint and without
awaiting the conclusion of a grievance process if a formal complaint is
filed. We therefore disagree that the Sec. 106.45 grievance process
poses a risk of undue delay for any complainant in the ESE context to
expect and receive a prompt, supportive response from the ESE recipient
designed to restore or preserve the complainant's equal educational
access.
Changes: None.
Comments: Commenters argued that the proposed rules' definition of
``sexual harassment'' would be problematic for ESE populations. These
commenters stated that young teens are particularly vulnerable to
sexual harassment, but that the standard for determining whether a
school has a duty to act--whether conduct was severe, pervasive, and
objectively offensive--is too high a bar for ESE students. In this
vein, commenters stated that ESE students will be traumatized from
repeated incidents of sexual misconduct that do not rise to the level
of the Sec. 106.30 definition of sexual harassment. Other commenters
noted that because this definition mirrors the standard for private
rights of action in civil suits, the proposed rules would have the
consequence of leading more people to court. The commenters argued that
if one of the goals of the proposed rules is to reduce the amount of
litigation involving Title IX, they do the opposite.
Discussion: The Department appreciates this feedback, but for the
reasons explained in the ``Sexual Harassment'' subsection of the
``Section 106.30 Definitions'' section of this preamble and in the
``Definition of Sexual Harassment'' subsection of the ``Adoption and
Adaption of the Supreme Court's Framework to Address Sexual
Harassment'' section of this preamble, the Department believes that the
Sec. 106.30 definition of sexual harassment is appropriate for
application in elementary and secondary schools. We reiterate that
under these final regulations, recipients remain free to address
misconduct that does not meet that definition under State laws or a
recipient's own code of conduct, and as to such misconduct these final
regulations (including the general response obligations in Sec. 106.44
and the grievance process in Sec. 106.45) do not apply. For reasons
discussed throughout this preamble, including in the ``Litigation
Risk'' subsection of the ``Miscellaneous'' section of this preamble,
the Department believes that these final regulations may have the
[[Page 30487]]
benefit of reducing litigation, because these final regulations adopt
the Supreme Court's Gebser/Davis framework for addressing sexual
harassment, yet adapt that framework in a manner that places on
recipients specific legal obligations to support complainants that are
not required in private Title IX lawsuits, and do so in a manner that
we believe also ensures that the recipient's response meets
constitutional requirements of due process of law and respect for First
Amendment rights (which public schools owe to students and employees)
and concepts of fundamental fairness that private schools owe to
students and employees. Thus, we believe that implementing these final
regulations may have the ancillary benefit of reducing litigation
arising from school responses to Title IX sexual harassment.
Changes: None.
Comments: Commenters argued that schools will be confused when
trying to balance certain Federal rights with other ones, in cases
where there is tension. Commenters argued that the proposed rules did
not adequately discuss what should happen when one of the students
involved in allegation of sexual harassment is a student with a
disability and has rights under the IDEA or Section 504. One commenter
stated that under the IDEA, school districts serve students from the
age of three to the age of 21, so providing for one-size-fits-all
policies, even just for students with a disability, might not be
developmentally appropriate. Other commenters argued that the proposed
rules may be in tension with rape shield laws, or that, at least,
school personnel will have difficulty navigating the issues if there is
ambiguity.
Discussion: The final regulations do not supersede the IDEA,
Section 504, or the ADA. The final regulations provide significant
flexibility for recipients, and recipients may utilize this flexibility
in challenging cases, including where a recipient must comply with both
these final regulations, and applicable disability laws. Additionally,
the final regulations provide complainants with rape shield
protections, and deem questions and evidence regarding a complainant's
prior sexual behavior irrelevant (unless such questions or evidence are
offered to prove that someone other than the respondent committed the
alleged conduct, or if it concerns specific incidents of sexual
behavior with the respondent and is offered to prove consent). These
concerns are further addressed in the ``Section 106.45(b)(6)(ii)
Elementary and Secondary School Recipients May Require Hearing and Must
Have Opportunity to Submit Written Questions'' subsection of the
``Hearings'' subsection of the ``Section 106.45 Recipient's Response to
Formal Complaints'' section of this preamble.
Changes: None.
Comments: Some commenters stated that they were concerned about the
proposed rules creating a two-tiered system of complaints, which would
be particularly challenging at the ESE level. The commenters argued
that some allegations would rise to the level of sexual harassment
contemplated by the proposed rules and would therefore trigger a
school's duty to respond and go through the grievance procedures. Other
conduct, stated commenters, might be sexual in nature, and even severe
or pervasive or objectively offensive--but not all three--and thus not
trigger a duty to respond, and not trigger any need to go through the
grievance procedures. But this conduct might still be prohibited by a
school's code of conduct, noted commenters, and a school could still
discipline students for code of conduct violations. Commenters thought
this would pose an awkward, confusing process for both students who
allege unwelcome conduct occurred, and for students who were accused of
unwelcome conduct.
Discussion: As discussed above and throughout this preamble, these
final regulations define sexual harassment that triggers a recipient's
response obligations to mean any of three types of misconduct (i.e.,
quid pro quo harassment by an employee, severe and pervasive and
objectively offensive unwelcome conduct that denies a person equal
educational access, or any of the four Clery Act/VAWA sex offenses--
sexual assault, dating violence, domestic violence, or stalking). The
Department believes that drawing a distinction between actionable
sexual harassment under Title IX, and other misconduct that may be
unwelcome but does not interfere with a person's equal educational
access (such as offensive speech protected by principles of free speech
and academic freedom), helps a recipient reach the difficult balance
between upholding the non-discrimination mandate of Title IX while
comporting with constitutional rights and principles of fundamental
fairness.\1741\ As explained in the ``Sexual Harassment'' subsection of
the ``Section 106.30 Definitions'' section of this preamble, Federal
non-discrimination laws such as Title IX (as interpreted under
Department guidance) and Title VII (under which a standard of ``severe
or pervasive'' sexual harassment applies) have long utilized some
threshold measure of when misconduct rises to the level of being
actionable under the Federal non-discrimination law (e.g., when a
school must respond under Title IX, or an employer must respond under
Title VII). The Department's use in these final regulations of the
Supreme Court's Davis formulation of actionable sexual harassment as
one of three categories of misconduct defined as actionable sexual
harassment leaves recipients discretion to address other misconduct as
the recipient deems appropriate (or as required under State laws),
while focusing Title IX enforcement on responding to conduct that
jeopardizes a person's equal educational access. That response must
support a complainant while being fair to both parties, including by
offering supporting measures to a complainant and refraining from
punishing a respondent without following a fair grievance process. The
Department views this flexibility as a strength of these final
regulations, rather than to the detriment of recipients or their
students and employees. While this may create two different sets of
procedures for recipients, this is a natural consequence of having to
comply with a Federal non-discrimination laws such as Title IX, which
focuses on denial of equal educational access and does not cover all
types of student misconduct, and appropriate enforcement of which may
require processes that are above and beyond processes a school uses to
address other types of student misconduct.
---------------------------------------------------------------------------
\1741\ See the ``Role of Due Process in the Grievance Process''
section of this preamble.
---------------------------------------------------------------------------
Changes: None.
Comments: Commenters suggested that if anything, ESE schools should
provide more due process for respondents than PSE institutions, and not
less, because students must generally attend ESE schools as a matter of
compulsory State laws regarding education, whereas there is no
compulsory education at the postsecondary level; commenters shared
personal stories of themselves (or family members) being accused of
sexual harassment as high school students and urged the Department to
provide high school students with strong due process protections. One
commenter alleged that ESE institutions are dominated by teachers'
unions on the left side of the political spectrum, and are therefore
trained to believe all accusers, such that accused students cannot
expect to get fair treatment unless it is mandated by Federal law. One
other commenter argued that whatever the proposed rules provide, they
should offer additional
[[Page 30488]]
protections to parties who are students, as opposed to employees, given
that there is no right or obligation related to having a job, but there
are compulsory attendance rules for schools.
One other commenter stated that the proposed rules do not account
for schools that want to eschew the adversarial process in most cases
and focus instead on practices generally referred to as ``restorative
justice.'' These practices, asserted commenters, reduce implicit bias
and protect school climate better than pure disciplinary models.
Discussion: The Department believes that the final regulations
protect due process for students and employees at both the ESE and PSE
levels.\1742\ The final regulations effectively require that schools
provide adequate due process protections to all students, irrespective
of whether school personnel themselves are ideologically supportive of
such rights, and at the same time require schools to respond
supportively to protect complainants' equal educational access.
Additionally, the final regulations establish sufficient rights for ESE
students to adequately defend themselves from accusations of sexual
harassment, for example through the right to inspect and review all
evidence directly related to the allegations including exculpatory
evidence, whether obtained by a party or other source, the right to
review the investigative report containing the recipient's summary of
relevant evidence, the right to an advisor of choice, and the right to
pose written questions and follow-up questions to the other party and
witnesses prior to a determination regarding responsibility being
reached. At the same time, the foregoing procedural rights are granted
equally to complainants, resulting in a truth-seeking grievance process
that provides due process protections for all parties.
---------------------------------------------------------------------------
\1742\ See the ``Role of Due Process in the Grievance Process''
section of this preamble.
---------------------------------------------------------------------------
Nothing in the final regulations prevents recipients from
facilitating informal resolution processes, including what commenters
referred to as restorative justice processes, within the confines of
Sec. 106.45(b)(9).
Changes: None.
Comments: Many commenters argued that the Department's Directed
Question 1 was itself flawed, because it asked whether different rules
ought to apply to different institutions that are ESE or PSE
institutions, while many ESE students interact with PSE institutions in
a variety of ways. Commenters noted that some PSE institutions run
daycares, elementary and secondary school sporting enrichment programs,
host high-school students for events, and even enroll high-school
students in dual-enrollment courses at the PSE level. Several community
colleges commented to say that they had numerous ESE students enrolled
in their courses, and that many of these students came onto their
campuses physically during the day. The schools argued that it would be
confusing to use certain procedures designated only for the PSE
recipients when minors--and perhaps even young children who were simply
enrolled in daycare at the institution--were involved in an allegation
of sexual harassment. Some commenters noted that it was theoretically
possible to have two minors who attend high school but who are dual-
enrolled in college courses as parties to an investigation. In that
case, asserted commenters, a school would have to use its own
institution's grievance procedures, despite the students being minors,
which commenters argued cannot be what the proposed rules intended.
Discussion: The Department agrees with commenters who suggested
that no system will perfectly distinguish individuals who ought to be
subject to more sophisticated procedures in every instance of alleged
sexual harassment, but that distinguishing between ESE and PSE
recipients is valuable as a proxy. These final regulations require a
recipient to respond to sexual harassment whenever the recipient has
notice of sexual harassment that occurred in the recipient's own
education program or activity, regardless of whether the complainant or
respondent is an enrolled student or an employee of the
recipient.\1743\ The manner in which a recipient must, or may, respond
to the sexual harassment incident may differ based on whether the
complainant or respondent are students, or employees, of the recipient.
For example, if a complainant is not an enrolled student but attends a
sports camp at the institution, the type of supportive measures
reasonably available to help that complainant may differ from
supportive measures that would assist an enrolled student. As another
example, if the respondent is not enrolled or employed by the
institution but commits sexual harassment in the recipient's education
program or activity, the recipient may in its discretion (via the Title
IX Coordinator signing a formal complaint) initiate a grievance process
against that respondent,\1744\ yet must still offer supportive measures
to the complainant. Conversely, if the respondent is not enrolled or
employed by the institution, the recipient may, in its discretion,
dismiss a formal complaint filed by the complainant against that
respondent,\1745\ and again, must still offer supportive measures to
the complainant. While the Department understands that many students
are dual-enrolled, and that some students in ESE are over the age of
majority and some students in PSE are minors, we believe that these
final regulations appropriately set forth legal obligations for all
recipients to respond supportively to complainants and fairly to both
complainants and respondents, and that the concept of an ESE recipient,
or a PSE recipient, needing to take into account the ages of its
students is neither unfamiliar nor infeasible for ESE and PSE
recipients.
---------------------------------------------------------------------------
\1743\ Section 106.44(a) (general response obligations of a
recipient); Sec. 106.30 (defining ``complainant'' to mean ``an
individual'' without restricting the definition to a student or
employee); Sec. 106.30 (defining ``respondent'' to mean ``an
individual'' without restricting the definition to a student or
employee); Sec. 106.30 (defining ``formal complaint'' and stating
that a formal complaint may be filed by a complainant who is
participating, or attempting to participate, in the recipient's
education program or activity at the time of filing the formal
complaint).
\1744\ Section 106.30 (defining ``formal complaint'' as a
document filed by a complainant or signed by the Title IX
Coordinator alleging sexual harassment against a respondent); Sec.
106.44(b)(1) (requiring a recipient to follow the Sec. 106.45
grievance process in response to any formal complaint and to meet
all Sec. 106.44(a) obligations which include offering the
complainant supportive measures).
\1745\ Section 106.45(b)(3)(ii) (permitting discretionary
dismissal of a formal complaint in specified instances, including
where the respondent is no longer enrolled or employed by the
recipient).
---------------------------------------------------------------------------
With respect to concerns that complainants who are minors may
suffer sexual harassment in a PSE institution's education program or
activity and thus the PSE institution would be applying grievance
procedures to a formal complaint filed by that complainant, including
procedures that are more difficult for minors to navigate in and
participate in (for example, appearing at a live hearing and being
subjected to cross-examination), these final regulations contain
protections that mitigate the potential for re-traumatization of all
complainants at a live hearing. For instance, Sec. 106.45(b)(6)(i)
states that, at the request of either party, the recipient must provide
for the live hearing (including cross-examination) to occur with the
parties located in separate rooms with technology enabling the
decision-maker and parties to simultaneously see and hear the party or
the witness answering questions; forbids parties from personally
questioning each other; and expressly states that
[[Page 30489]]
before any party must answer a cross-examination question the decision-
maker must first determine whether the question is relevant. Moreover,
a complainant need not be subjected to cross-examination at a PSE
institution's live hearing, so long as the decision-maker does not rely
on any statement of that complainant in reaching a determination
regarding responsibility.\1746\ Nothing in these final regulations
precludes a recipient from training its investigators or decision-
makers in best practices for interviewing and questioning minors, so
long as such training also meets the requirements for training of Title
IX personnel set forth in Sec. 106.45(b)(1)(iii). These provisions
help ensure that cross-examination (which may seem daunting especially
for a minor) is conducted in a reasonable, respectful, truth-seeking
manner. These final regulations provide additional protections that are
especially helpful for a minor student navigating a grievance process,
whether conducted by an ESE institution or a PSE institution; for
example, Sec. 106.45(b)(5)(iv) allows each party to select an advisor
of choice who may be, but need not be, an attorney, while Sec.
106.6(g) recognizes the legal right of a parent to act on a
complainant's behalf throughout the grievance process.
---------------------------------------------------------------------------
\1746\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters argued that the proposed rules ought to
be changed to contemplate different categories of ESE students, and
therefore distinguish between allegations of sexual harassment that
occur at elementary schools, middle schools, and high schools.
Discussion: As discussed in the ``Role of Due Process in the
Grievance Process'' section of this preamble, consistency and
predictability are important goals of these final regulations, balanced
with the recognition that the type of due process owed may be different
in particular situations, which the Department has concluded include
the difference between the ESE and PSE context.\1747\ However,
different processes for preschool, elementary school, middle school,
and high school would significantly reduce the end goal of providing
recipients, students, and employees with a consistent, predictable
framework for recipient responses to Title IX sexual harassment. Within
the framework of the final regulations, recipients retain significant
discretion to employ age-appropriate rules and approaches (so long as
such discretionary rules apply equally to complainants and
respondents).\1748\
---------------------------------------------------------------------------
\1747\ For example, the final regulations require postsecondary
institutions to use a live hearing model for Title IX sexual
harassment adjudications, while ESE recipients need not use any kind
of hearing. Sec. 106.45(b)(6)(i)-(ii).
\1748\ The introductory sentence of revised Sec. 106.45(b)
states that any provisions, rules, or practices other than those
required by this section that a recipient adopts as part of its
grievance process for handling formal complaints of sexual
harassment as defined in Sec. 106.30, must apply equally to both
parties.
---------------------------------------------------------------------------
Changes: None.
Comments: Commenters asserted that the proposed rules ought to be
modified to state expressly that students can always rely on their
parents or guardians for assistance as they proceed through the Title
IX process at their school.
Discussion: Nothing in the final regulations prevents students from
relying on their parents or guardians for assistance or selecting a
parent or guardian as an advisor of choice during a grievance process.
Indeed, where parents or guardians have a legal right to act on behalf
of a student, including during a grievance process, the final
regulations expressly respect such right, and where a parent has the
legal right to act on their child's behalf, the parent may accompany
their child throughout the grievance process in addition to an advisor
of the party's choice.\1749\ The Department expects that for many
students, the participation of a parent or guardian in the grievance
process will be a function of their underlying legal rights as parents
or guardians, and the final regulations respect, and do not alter,
those parental or guardianship rights.
---------------------------------------------------------------------------
\1749\ Section 106.6(g); Sec. 106.45(b)(5)(iv).
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter suggested that in the ESE setting, schools
should have the duty only to investigate and draft a report and
recommendation, but then provide the report and recommendation to an
outside neutral party. That way, asserted the commenter, school
personnel would not have to adjudicate the final result and potential
disciplinary consequences of the Title IX process.
Discussion: The final regulations are designed for school officials
to perform the functions of investigators and decision-makers without
the need to hire outside contractors. The final regulations do not
preclude a recipient from outsourcing its investigative and
adjudicative responsibilities under these final regulations, but the
Department declines to require recipients to do so, and the recipient
remains responsible for compliance with these final regulations whether
a recipient meets its obligations by using its own personnel or by
hiring outside contractors.
Changes: None.
Comments: Commenters suggested that the final regulations should
include robust training requirements for school personnel, especially
with respect to the differences between ESE and PSE institutions. Other
commenters suggested that school personnel undergo trauma-informed
training, such that they would better be able to observe symptoms of
sexual harassment.
Discussion: Recipients must, under Sec. 106.45(b)(1)(iii), ensure
that Title IX Coordinators, investigators, decision-makers, and any
person who facilitates an informal resolution process receive certain
training, including on the definition of sexual harassment, the scope
of the recipient's education program or activity, how to conduct an
investigation and grievance process, including hearings, appeals, and
informal resolution processes, as applicable, and how to serve
impartially, including by avoiding prejudgment of the facts at issue,
conflicts of interest, and bias, and (as to investigators and decision-
makers) how to determine issues of relevance. While these training
materials must not rely on sex stereotypes and must promote impartial
investigations and adjudications of sexual harassment, recipients may
use their discretion to adopt additional components to training,
including materials describing the impact of trauma.
Changes: None.
Comments: Commenters stated that the proposed rules would likely be
in tension with numerous State laws that codify certain procedures
before students can be disciplined, particularly if the discipline is
suspension or expulsion. Commenters asserted this would have
unpredictable consequences, such as schools perhaps having to conduct
two separate investigatory or grievance procedures, in order to comply
with both the proposed rules and State law. Commenters asserted that
having to conduct two separate processes would be awkward, confusing,
and potentially in conflict with one another. Some suggested as a
solution adding a waiver requirement, so that the Secretary could
permit schools to opt out of certain grievance procedures. Other
commenters suggested a safe harbor provision, such that a school in
compliance with State law need not separately comply with the proposed
rules.
Discussion: The Department appreciates this feedback but declines
to make any changes to the final
[[Page 30490]]
regulations in response to these comments. Recipients ought, to the
maximum extent possible, seek to comply with all State and local laws,
consistent with the final regulations. To the extent that a conflict
cannot be resolved, the final regulations control. For further
discussion of conflict with State laws, see the discussion in the
``Section 106.6(h) Preemptive Effect'' subsection of the ``Clarifying
Amendments to Existing Regulations'' section of this preamble. For
reasons explained in the ``Role of Due Process in the Grievance
Process'' section of this preamble, the Department has determined that
the provisions in Sec. 106.45 constitute the important procedures
needed to ensure that investigations and adjudications of Title IX
sexual harassment allegations are fair, reliable, and viewed as
legitimate, to effectuate the non-discrimination mandate of Title IX--
an important Federal civil rights law. As to student or employee
misconduct that does not constitute Title IX sexual harassment, these
final regulations do not prescribe what kind of disciplinary procedures
a recipient must or may use. The Department does not view this
potential for ``two separate processes'' as a negative consequence of
these final regulations; rather, these final regulations appropriately
confine their application only to sex discrimination in the form of
sexual harassment, and leave other misconduct under the purview of
States and local schools.
Changes: None.
Comments: Some commenters asked whether the grievance procedures
varied based on who the complainant was, who the respondent was, or
which institution was conducting the process. These commenters also
asked what should occur if there are multi-party allegations, and the
school must interact with individuals of different grade levels. One
commenter described a hypothetical situation of a professor in a PSE
setting who teaches ESE students, perhaps as part of a dual-enrollment
program. In the hypothetical, one of the ESE students accuses the
professor of sexual harassment, but refuses to participate in cross-
examination at a live hearing, since the proposed rules contemplate
that procedure only for PSE institutions. The commenter asked if the
school must discount the allegation, find the professor non-responsible
for the accusation, and simply drop the issue, ignoring the possibility
that the professor may then sexually harass other students.
Discussion: The obligations of a recipient are tied to whether it
is an ESE or a PSE institution, not to the individual parties involved
in a specific allegation of sexual harassment. Whether sexual
harassment involves two individuals or more is not relevant to the
question of which procedures apply; however, in response to commenters
who wondered how multi-party situations could be addressed, the final
regulations add Sec. 106.45(b)(4) giving recipients discretion to
consolidate formal complaints where allegations arise from the same
facts and circumstances, so that a single grievance process might
involve multiple complainant and/or multiple respondents. Where sexual
harassment is alleged in the education program or activity of a PSE
institution, Sec. 106.45(b)(6)(i) requires the recipient to adjudicate
the allegations by holding a live hearing, with cross-examination
conducted by party advisors (including a recipient-provided advisor if
a party appears at the live hearing without an advisor of choice). That
provision instructs the decision-maker not to rely on statements of a
party who chooses not to appear or be cross-examined at the live
hearing; however, the revised provision also directs the decision-maker
not to draw any inference about the determination regarding
responsibility based on the refusal of a party to appear or be cross-
examined. Thus, a recipient is not required to ``drop the issue'' or
required to reach a non-responsibility finding whenever a complainant
refuses to appear or be cross-examined; rather, the decision-maker may
proceed to objectively evaluate the evidence that remains (excluding
the non-appearing party's statements) and reach a determination
regarding responsibility.\1750\ Further, a recipient must offer
supportive measures to a complainant regardless of whether the
complainant signs a formal complaint initiating a grievance process or
refuses to participate in a grievance process, and nothing in the final
regulations precludes a recipient from providing supportive measures
designed to deter sexual harassment regardless of the outcome of a
grievance process. Under Sec. 106.44(d), a recipient may place a non-
student employee-respondent on administrative leave during pendency of
a grievance process, ensuring that regardless of the outcome of the
grievance process the recipient may separate an employee from contact
with students, in the recipient's discretion.
---------------------------------------------------------------------------
\1750\ For further discussion of the consequences of a party or
witness refusing or failing to appear at a live hearing or refusing
to submit to cross-examination, see the ``Hearings'' subsection of
the ``Section 106.45 Recipient's Response to Formal Complaints''
section of this preamble.
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters asked for more guidance about how ESE
students should pose questions to each other during the grievance
process, and how ESE students should be expected to respond, and
whether a parent or advisor could help them craft responses. One
commenter suggested that the proposed rules ought to expressly provide
that a school should take account of the English proficiency of the
parties involved in a sexual harassment complaint. Another commenter
suggested that the final regulations should address instances where a
young student alleges sexual harassment, but their parent is
unsupportive or uninvolved in the student's life and thus does not
adequately help the student through the process.
One commenter suggested that all cases of sexual harassment
involving an ESE institution ought to begin with informal resolution
processes to avoid the allegedly lengthy and onerous grievance
processes. Another commenter suggested that a school ought to have a
duty to appoint an advocate or trauma-informed counselor for every
student alleging sexual harassment.
Other commenters suggested that some provisions be clarified. For
instance, commenters suggested that it be unambiguously expressed that
live hearings are not required at the ESE level. Commenters also
suggested an unambiguous provision about emergency removal being
acceptable where a school determines that an imminent threat to health
or safety exists in an ESE school. Another commenter suggested that
parental rights should be more clearly spelled out than in the proposed
regulations. One commenter suggested that OCR issue sub-regulatory
guidance to aid ESE institutions in understanding the final
regulations.
Discussion: As discussed in the ``Section 106.45(b)(6)(ii)
Elementary and Secondary School Recipients May Require Hearing and Must
Have Opportunity to Submit Written Questions'' subsection of the
``Hearings'' subsection of the ``Section 106.45 Recipient's Response to
Formal Complaints'' section of this preamble, we have revised Sec.
106.45(b)(6)(ii) in line with commenters' request to more clearly state
that an elementary and secondary school recipient is not required to
hold hearings to adjudicate formal complaints, and the aforementioned
preamble discussion explains that if an ESE recipient does choose to
hold a hearing (live or otherwise), these final regulations do not
prescribe the procedures that must
[[Page 30491]]
occur at such a hearing held by an ESE recipient (e.g., cross-
examination need not be provided), and that preamble discussion also
addresses commenters' concerns and questions about what the written
submission of questions process must, and may, consist of under Sec.
106.45(b)(6)(ii).
As noted previously, we have added Sec. 106.6(g) to expressly
acknowledge the legal rights of parents or guardians to act on behalf
of parties during a Title IX grievance process. Where a young student's
parent is unsupportive or unable to assist the student, the student is
still entitled to an advisor of choice (under Sec. 106.45(b)(5)(iv))
and nothing in the final regulations precludes a recipient from
adopting a policy of offering to provide an advisor to students, as
long as such a policy makes a recipient-offered advisor equally
available (on the same terms) to complainants and respondents, per the
revised introductory sentence of Sec. 106.45(b). As noted previously,
nothing in the final regulations precludes a recipient from training
its Title IX personnel in trauma-informed approaches as long as such
training also complies with the requirements in Sec.
106.45(b)(1)(iii).
The final regulations expressly acknowledge that recipients may
need to adjust a grievance process to provide language assistance for
parties; see Sec. 106.45(b)(1)(v).
For reasons discussed in the ``Informal Resolution'' subsection of
the ``Section 106.45 Recipient's Response to Formal Complaints''
section of this preamble, we decline to require parties to attempt
informal resolution prior to commencing the grievance process; we
believe that the parties should only engage in informal resolution when
that choice is the result of each party's voluntary, informed, written
consent.\1751\ We reiterate that a parent or guardian's legal right to
act on behalf of a complainant or respondent extends to every aspect of
a grievance process, which would include deciding whether to
voluntarily consent to participate in informal resolution.
---------------------------------------------------------------------------
\1751\ We have revised Sec. 106.45(b)(9) regarding informal
resolutions to preclude a recipient from offering or facilitating
informal resolution to resolve allegations that an employee sexually
harassed a student.
---------------------------------------------------------------------------
The Department believes that Sec. 106.44(c) authorizing emergency
removals of respondents who pose an imminent threat to the physical
health or safety of one or more individuals appropriately addresses the
need for ESE recipients to respond quickly and effectively to emergency
risks that arise out of sexual harassment allegations. That provision
applies equally to all recipients, including ESE recipients.
The Department will offer technical assistance to recipients,
including ESE recipients, regarding implementation of these final
regulations. However, for reasons described in the ``Notice and Comment
Rulemaking Rather than Guidance'' section of this preamble, the
Department believes that legally binding regulations will be more
effective than Department guidance with respect to enforcing
recipients' Title IX obligations.
Changes: None.
Comments: One commenter stated that the proposed rules create a
separate process for one type of discrimination but do not impose the
same requirements for other types of discrimination, and elementary and
secondary school districts already have age appropriate procedures in
place to respond to claims of all types of discrimination.
One commenter asserted that postsecondary institutions have
significantly more resources than elementary and secondary schools and
argued that the proposed rules should be tested at the postsecondary
level prior to implementation in elementary and secondary schools.
One commenter asserted that the proposed rules are problematic in
the elementary and secondary school context because many of the school
districts in the commenter's State are small, with one administrator
acting as Title IX Coordinator, who is typically the school district
superintendent. The commenter stated that decisions regarding
responsibility for behavioral violations and disciplinary actions,
however, are typically left to school principals who are directly
accountable for students. The same commenter asserted that implementing
the proposed rules will be costly for small school districts, which
will need to train additional staff and contract with third-party
investigators.
Discussion: These final regulations specifically address sexual
harassment as a form of sex discrimination and are based on the premise
that sexual harassment must be addressed through a specific grievance
process, whether or not that process is also applied with respect to
other types of discrimination. The ``prompt and equitable'' grievance
procedures described in Sec. 106.8 must be used to resolve complaints
of sex discrimination, while the grievance process in Sec. 106.45 must
be used to resolve allegations of sexual harassment in formal
complaints. The Department's regulations under Title VI describe the
process for addressing discrimination based on race, color, and
national origin. Different types of discrimination may require a
different process, and a recipient is not required to address
discrimination on the basis of race (for instance, under Title VI) in
the same manner as sexual harassment under these final regulations
implementing Title IX.\1752\
---------------------------------------------------------------------------
\1752\ For further discussion see the ``Different Standards for
Other Harassment'' subsection of the ``Miscellaneous'' section of
this preamble.
---------------------------------------------------------------------------
The Department disagrees that all elementary and secondary school
districts have age-appropriate procedures to respond to allegations of
sexual harassment as well as all other types of discrimination.
Numerous commenters described experiences with ESE recipients who have
not responded supportively and/or fairly to sexual harassment
allegations, and the Department seeks to hold ESE recipients
accountable for meeting legally binding response obligations under
these final regulations.
We disagree that all postsecondary institutions have more resources
than elementary and secondary schools. The Department notes that these
final regulations apply to smaller and larger postsecondary
institutions. The Department disagrees that these final regulations
should be tested in postsecondary institutions before being applicable
to elementary and secondary schools because the final regulations have
different requirements for postsecondary institutions than for
elementary and secondary schools where appropriate, and require all
recipients to respond supportively and fairly to sexual harassment in
recipients' education programs or activities. Testing these final
regulations at postsecondary institutions will not necessarily result
in a better outcome for elementary and secondary schools. There also
should be some uniformity or similarity among recipients, whether
elementary and secondary schools or postsecondary institutions, in
addressing the same type of sex discrimination in the form of sexual
harassment. The Department disagrees that these final regulations are
unduly burdensome for smaller elementary and secondary schools. The
Department does not require any recipient to use third-party
investigators or otherwise to hire contractors to perform a recipient's
investigation and adjudication responsibilities under these final
regulations. Any recipient, irrespective of size, may use existing
employees to fulfill the role of Title IX Coordinator, investigator,
and decision-maker, as long as these employees do not have a
[[Page 30492]]
conflict of interest or bias and receive the requisite training under
Sec. 106.45(b)(1)(iii). These final regulations provide essential
safeguards for complainants and respondents, and these safeguards
should not be sacrificed due to concerns of administrative burden or
financial cost. We note throughout this preamble areas in which the
Department has revised these final regulations to relieve
administrative burdens where doing so preserves the intention of
important provisions of the grievance process (for example, Sec.
106.45(b)(5)(vi) removes the requirement that evidence subject to the
parties' inspection and review be electronically sent to parties using
a file sharing platform that restricts downloading and copying, and now
permits the evidence to be sent either in electronic format or hard
copy).
The Department is not aware of any State or local laws that
directly conflict with these final regulations and discusses preemption
and conflicts with State laws in greater detail in the ``Section
106.6(h) Preemptive Effective'' subsection of the ``Clarifying
Amendments to Existing Regulations'' section of this preamble.
Changes: None.
Directed Question 2: Application Based on Type of Recipient or Age of
Parties
Comments: Numerous commenters stated that the proposed rules
appropriately distinguished between ESE and PSE institutions, as
opposed to distinguishing between students based on age. Some
commenters noted that it would be difficult for schools to apply
different procedures to different students, and it would be especially
confusing when the students were different ages, such as 17 and 18.
Commenters asserted that for multi-party allegations where both minors
and adults are involved as both complainants or respondents, it would
be hard for schools to know which policies to apply.
Many commenters stated that once a student attends a PSE
institution, the student should be treated as an adult for the purpose
of the proposed rules. Some commenters cited FERPA in support of this
proposition, contending that FERPA recognizes instances where ``a
student has reached 18 years of age or is attending an institution of
postsecondary education.'' Other commenters suggested that no system
was perfect, but that using the institution that the student attends or
employee works at is at least a rough proxy for which procedures should
apply. One commenter asserted that since the real risk posed by the
distinction between procedural regimes is having young children subject
to procedures that are most effective for more sophisticated parties,
the safer approach is to distinguish by institution, not age, since
very few young children will be in a college setting. One commenter
cited the varying school climates between ESE and PSE institutions as
another reason that the distinction worked as a rough proxy for
sophisticated parties. One commenter stated that it would do little
good for the final regulations to distinguish parties by age, since the
commenter argued that even two people who are over 18 can be in vastly
different positional relationships to one another, in terms of power,
authority, or mental development.
Discussion: We appreciate the feedback offered by commenters, and
the Department agrees that given the options, it is preferable to
distinguish between the types of institution that are involved in a
sexual harassment allegation rather than try to distinguish based on
the ages of the parties involved. While no dividing line will ever be
perfect, we expect that the line that the Department has chosen will
minimize the situations where young students are subject to procedures
conducted by a PSE institution, and we reiterate that even the most
rigorous procedures required in PSE institutions (i.e., live hearings
with cross-examination) may be applied in a manner that seeks to avoid
retraumatizing any complainant, including a complainant who is
underage.\1753\
---------------------------------------------------------------------------
\1753\ For further discussion see the ``Hearings'' subsection of
the ``Section 106.45 Recipient's Response to Formal Complaints''
section of this preamble.
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters responded to the NPRM's Directed Question
2 by disagreeing with the approach taken in the proposed rules, stating
that it would be preferable to distinguish students and applicable
grievance procedures by age, rather than the institution with
jurisdiction over the incident. These commenters suggested that age,
combined with maturity level, is the best way to determine whether a
student ought to be subject to more sophisticated grievance procedures.
Some commenters asserted that students who are under age 18 might be
more likely to rely on their parents or guardians, who may be able to
assist them with the process, whereas students over age 18 may not have
the same ability.
Other commenters defended the use of age as a dividing line,
stating that some very young students go to college if they advance
swiftly through elementary and secondary school. Commenters also stated
that students who are over age 18 have vastly different mental maturity
and developmental abilities than those under age 18, although
commenters did say that some individuals with neuro-developmental
disabilities who are over age 18 should not be subject to cross-
examination.
Other commenters asserted that it would be strange to have teachers
and other employees at ESE institutions receive fewer due process
rights than PSE employees, given that these individuals may need access
to the same grievance procedures to ensure a fair hearing. For
instance, the commenter suggested that it was anomalous to offer a
professor the right to have their advisor cross-examine a complainant
who was 17 years old, but enrolled in college, whereas a teacher
accused by an 18 year old senior in an ESE setting would have no such
right. Indeed, where two employees at an ESE institution are involved,
commenters asserted, it is not clear why the parties are not entitled
to the full breadth of the grievance procedures, since both are
presumably sophisticated parties.
Discussion: The Department appreciates this feedback and
acknowledges that any dividing line may lead to anomalous results in
some cases. We believe, however, that the final regulations can best
ameliorate those situations by structuring the distinction in certain
procedural requirements as between ESE and PSE institutions, rather
than by the ages of involved parties. Nothing in the final regulations,
however, prevents schools from, for example, holding live hearings at
the ESE level when both parties are employees or over age 18. We agree
with commenters who stated that requiring an institution to vary its
procedures based on the ages of the parties would likely lead to undue
confusion, particularly where the parties are of different ages, or
where multi-party allegations occur. We note that Sec. 106.6(g),
acknowledging the legal rights of parents and guardians to act on
behalf of parties in a Title IX grievance process, does not
differentiate between when a parent or guardian's rights apply to an
ESE student versus a PSE student, except to recognize that application
of parental rights must also be consistent with FERPA.
Changes: None.
Comments: Commenters stated that informal resolution is not
appropriate at
[[Page 30493]]
the ESE level, especially in cases involving a teacher who is accused
of sexual harassment. Since adults sometimes groom their victims for
sexual abuse, commenters argued that it would be inappropriate and
harmful to permit a teacher to escape the grievance process by going
through mediation or another informal resolution process when the
``choice'' to participate in informal resolution may not be truly
voluntary on the part of the young victim.
Discussion: The Department is persuaded by commenters' concerns
that grooming behaviors make ESE students susceptible to being
pressured or coerced into informal resolution processes, and we have
revised Sec. 106.45(b)(9) to preclude all recipients from offering or
facilitating informal resolution processes to resolve allegations that
an employee sexually harassed a student.
Changes: As discussed elsewhere in this preamble, we have revised
Sec. 106.45(b)(9)(iii) to prohibit ESE recipients (or any other
recipients) from providing an informal resolution process to resolve
allegations that an employee sexually harassed a student.
Comments: Some commenters stated that the proposed rules should be
revised to more consciously address students who are dual-enrolled in
high school and college. Commenters asserted, for instance, that the
PSE procedures (i.e., live hearings with cross-examination) should not
apply to students who are minors, even if they are dual-enrolled in
postsecondary institutions. Other commenters argued that the final
regulations should be changed to focus more on age distinctions, but
only for specific processes, such as cross-examination, which some
commenters asserted would be fine for students over age 18. Some
commenters suggested that a PSE institution ought to at least have the
flexibility to apply the ESE grievance procedures for instances where
all of the parties were dual-enrolled, or where all of the parties were
minors. Some commenters responded to the directed question by
suggesting even further breakdowns of students; for example, that the
full grievance procedures should only apply to students who are adults
and who are in a PSE setting; another set of procedures should apply to
students in grades four through 12; and another set of procedures
should apply to students in grades three and below.
Other commenters responded to the directed question by proposing
other modifications to the proposed rules. One commenter suggested that
PSE schools be able to adopt separate policies for individuals who are
in their education program or activity, but who are not students or
employees. These might include, according to the commenter, students
who are merely enrolled at the PSE institution for athletic camp, 4-H
programs, daycare students, or other individuals who are not taking
normal college courses at the PSE institution. The commenter suggested
that this was particularly appropriate where State law might already
address these situations, such as when a daycare is operated on a PSE
campus.
Discussion: The Department appreciates this feedback but declines
to make any changes to the final regulations based on these comments.
In these final regulations, we seek to balance competing interests to
adequately make Title IX processes consistent, predictable, and
understandable for all parties, at all types of educational
institutions, as well as in the context of recipients who operate
education programs or activities but are not educational institutions
(for example, some museums and libraries are recipients of Federal
financial assistance covered under Title IX). The commenters'
suggestions would involve making further distinctions between students,
than the differences acknowledged in the final regulations between ESE
and PSE recipients. The more exceptions that are made to what is
largely a uniform rule, the less likely it is that students and
employees will know what to expect with respect to reporting sexual
harassment and their school's response to such a report, including what
a grievance process will look like if a formal complaint is filed, and
it could become more difficult for recipients to apply these final
regulations in a consistent, transparent manner. The distinctions the
final regulations do make between elementary and secondary schools, and
postsecondary institutions, are those distinctions that the Department
believes result in a consistent, transparent set of rules appropriately
modified to take into account the generally younger ages of students in
elementary and secondary schools.\1754\
---------------------------------------------------------------------------
\1754\ For example, see the discussion in the ``Hearings''
subsection of the ``Section 106.45 Recipient's Response to Formal
Complaints'' section of this preamble regarding use of a live
hearing model for adjudications in postsecondary institutions but
not mandating hearings (live hearings or otherwise) for elementary
and secondary schools or other recipients that are not postsecondary
institutions.
---------------------------------------------------------------------------
Changes: None.
Directed Question 5: Individuals With Disabilities
Comments: While some commenters stated that the proposed rules
adequately accounted for issues related to the needs of students and
employees with disabilities, many commenters raised concerns and
objections based on obstacles students with disabilities currently face
in the context of Title IX proceedings, and expressed general
opposition on the ground that the proposed rules fail to take into
account the different needs, experiences, and challenges of students
with disabilities. A few commenters suggested that the Department seek
the counsel of, and defer to, organizations and professionals well-
versed in issues faced by individuals with disabilities, so that the
needs of individuals with disabilities are accommodated in all phases
of a Title IX process.
Several commenters stated that students with invisible disabilities
such as ADHD (attention-deficit/hyperactivity disorder), autism, and
anxiety disorder, do not currently receive the resources and supports
specific to their unique needs during Title IX proceedings. Some
commenters presented personal stories of how their disabilities, or
those of their children or students they know, were not accommodated
during Title IX investigations and hearings. Some commenters were
concerned about a recipient's apparent discretion to provide
appropriate reasonable accommodations individuals with disabilities
during the investigation and adjudication process. Some commenters
stated that their disability, or the disability of their child, would
make the grievance process too difficult to undergo, and would result
in fewer people with disabilities being able to report, which may even
lead to more suicides.
Some commenters believed the proposed rules failed to consider the
need for accommodations for respondents with disabilities, particularly
those on the autism spectrum, and that it is important that
communications with those students are made in a manner that is clearly
understandable to those students. Commenters asserted that many
respondents with disabilities are not informed or aware that their
rights under disability law also are available to them in a Title IX
disciplinary proceeding. One commenter suggested, for example, that all
Title IX-related communications, such as emails, should have a bold
print statement of protection for students with disabilities.
[[Page 30494]]
Commenters noted that effective communication is essential to protect
the rights of respondents who have disabilities, particularly
communication disorders such as autism, nonverbal learning disorders,
and expressive and receptive language disorders. Commenters stated that
such students often lack appropriate social skills, do not understand
nonliteral language, desperately want to ``fit in,'' are terrified of
persons with authority, are quick to apologize for fear of ``getting in
trouble'' and generally can be very manipulated as they are very
misunderstood, and that these factors may lead to unfairly holding such
students responsible for sexual harassment when a student may not
actually be responsible.
Several commenters stated that there is inadequate coordination
between Title IX offices and disability services offices when a student
with an invisible disability becomes involved in a Title IX proceeding,
as either a complainant or a respondent. Often, commenters stated,
students are unaware of either the necessity of receiving
accommodations from disability services or of the necessity of waiving
their privacy rights to allow the two offices to communicate. Some
commenters stated that institutions of higher education should
coordinate with their offices of disability services to identify
students with disabilities who are involved in Title IX proceedings
(while respecting student privacy rights), and should disseminate Title
IX information in ways that are accessible to all students (including
ensuring that websites are accessible and that information is provided
in plain language for students with intellectual disabilities).
Commenters asserted that failure of a student to access disability
services can result in the complainant or respondent being placed at a
distinct disadvantage during the Title IX proceedings. Some commenters
suggested that one way to connect the university's disability services
with the Title IX office might be to have students who may need
accommodations provide advance permission for a disability office to
consult with a disciplinary office (including a Title IX office) should
the student be subjected to a disciplinary proceeding, thereby alerting
the Title IX office to the student's disability and ensuring the
student's disability rights are protected.
Discussion: The Department appreciates that some commenters
believed that the proposed rules adequately accounted for issues faced
by students and employees with disabilities, and understands the
concerns from other commenters that the final regulations should more
fully and expressly account for the needs, experiences, and challenges
of students with disabilities. The Department appreciates that many
stakeholders representing the interests of individuals with
disabilities participated in the public comment process, and
appreciates the opportunity here to emphasize the importance of
recipients complying with all applicable disability laws when meeting
obligations under these final regulations.
The Department understands that a grievance process may be
difficult to undergo for many students, regardless of disability
status, and that such a process may be more challenging to navigate for
individuals with disabilities. In response to commenters' concerns, we
have revised Sec. 106.44(a) to require recipients to offer supportive
measures as part of a prompt, non-deliberately indifferent response any
time a recipient has notice of sexual harassment or allegations of
sexual harassment against a person in the United States, in the
recipient's education program or activity. This prompt response must
include the Title IX Coordinator promptly contacting the complainant
(i.e., the person alleged to be the victim of conduct that could
constitute sexual harassment, regardless of who reported the sexual
harassment to the recipient) to discuss the availability of supportive
measures as defined in Sec. 106.30, consider the complainant's wishes
with respect to supportive measures, inform the complainant of the
availability of supportive measures with or without the filing of a
formal complaint, and explain to the complainant the process for filing
a formal complaint. The process for offering supportive measures after
considering the complainant's wishes is an interactive process that is
not unlike the interactive process that the ADA requires. By ensuring
that each complainant is offered supportive measures regardless of
whether the reported incident results in a grievance process, more
complainants, including individuals with disabilities, can feel safe
reporting without fearing that a report automatically leads to
participation in a grievance process.\1755\
---------------------------------------------------------------------------
\1755\ Supportive measures are also available for respondents.
See Sec. 106.30 (defining ``supportive measures'' to include
services provided to respondents); Sec. 106.45(b)(1)(ix) (ensuring
that parties are informed of the type of supportive measures
available to complainants and respondents).
---------------------------------------------------------------------------
The Department appreciates the descriptions from commenters of the
importance of clear communication with students with disabilities,
particularly those on the autism spectrum, and the importance that
students understand that their rights under disability laws apply
during a Title IX proceeding. The Department appreciates the
opportunity to emphasize here that recipients must meet obligations
under these final regulations while also meeting all obligations under
applicable disability laws including the IDEA, Section 504, and the
ADA. With respect to the intersection between these Title IX final
regulations, and disability laws under which the Department has
enforcement authority, the Department will continue to offer technical
assistance to recipients.
The Department acknowledges commenters' concerns noting that a
student with a disability may need to interact with separate offices
within a recipient's organizational structure (e.g., a disability
services office, and a Title IX office). The Department emphasizes that
recipients must comply with obligations under disability laws with
respect to students, employees, or participants in a Title IX reporting
or grievance process situation, regardless of the recipient's internal
organizational structure. These final regulations, which concern sexual
harassment, do not address a recipient's obligations under the ADA and
do not preclude recipients from notifying students involved in a Title
IX grievance process that the students may have rights to disability
accommodations.
To the extent that disability accommodations may overlap with
supportive measures or remedies required under Title IX, the Department
notes that if an accommodation involves a Title IX supportive measure
or remedy, the final regulations specify that the Title IX Coordinator
is responsible for the effective implementation of such supportive
measures (Sec. 106.30 defining ``supportive measures'') and remedies
(Sec. 106.45(b)(7)(iv) as added in the final regulations). These
requirements are intended, in part, to ease the burden on a student in
need of the supportive measure or remedy to receive the needed service
especially when doing so involves coordination of multiple offices
within the recipient's organizational structure (for example, when a
supportive measure involves changing a dorm room assignment and doing
so through the housing office, and a student with a disability needs to
ensure a housing unit modified to accommodate a disability, or when a
remedy involves re-taking an exam and doing so through an academic
affairs office).
[[Page 30495]]
Changes: We have revised Sec. 106.44(a) to require recipients to
offer supportive measures as part of a prompt, non-deliberately
indifferent response to sexual harassment, and to require the
recipient's Title IX Coordinator to promptly contact the complainant to
discuss the availability of supportive measures as defined in Sec.
106.30, consider the complainant's wishes with respect to supportive
measures, inform the complainant of the availability of supportive
measures with or without the filing of a formal complaint, and explain
to the complainant the process for filing a formal complaint. Section
106.45(b)(7)(iv) now provides that Title IX Coordinators are
responsible for the effective implementation of remedies.
Comments: Some commenters expressed concern that the proposed rules
would harm students with disabilities and make them more invisible and
vulnerable to sexual abuse because they might not know the types of
touching that are appropriate or inappropriate to come forward to the
designated school employee on their own.
Several commenters stated that students with disabilities that
limit their ability to communicate may find it even more difficult to
discuss incidents of a sexual nature. People with significant
intellectual disabilities may not understand what is happening or have
a way to communicate the sexual assault to a trusted person. Some
commenters expressed concern that the proposed rules would isolate
students with disabilities because a recipient's disability office may
no longer be required to report a sexual assault.
Some commenters stated that the proposed rules discriminate against
survivors with developmental disabilities, who are more vulnerable to
sexual abuse and that such a disability might prevent such individuals
from being able to communicate with school officials and provide
evidence for their case. For example, commenters suggested, a student
with a disability may only be comfortable communicating sensitive
issues to their own teacher(s), and in some cases may only be able to
communicate with appropriately trained special education staff. Other
students, commenters asserted, with less significant disabilities, may
realize they are being assaulted, but do not know they have a right to
say no. In addition, they are rarely educated about sexuality issues
(including consent) or provided assertiveness training. Even when a
report is attempted, such students face barriers when making statements
to police because they may not be viewed as credible due to having a
disability. Some people with intellectual disabilities also have
trouble speaking or describing things in detail, or in proper time
sequence. Other commenters stated that people with disabilities may
also face challenges in accessing services to make a report in the
first place; for example, someone who is deaf or deaf-blind may face
challenges accessing communication tools, like a phone, to report the
crime or get help.
Discussion: The Department appreciates commenters' concerns that
students with disabilities may have challenges comprehending the types
of touching that are inappropriate or understanding they have a right
to say ``no,'' identifying when they have been sexually harassed, or
communicating about an incident, and concerns that some students with
disabilities are more vulnerable to sexual abuse than peers without the
same disabilities. While the Department does not control school
curricula and does not require recipients to provide instruction
regarding sexuality or consent, nothing in these final regulations
impedes a recipient's discretion to provide educational information to
students. Although the Assistant Secretary will not require recipients
to adopt a particular definition of consent with respect to sexual
assault, a recipient's definition of consent should not violate any
disability laws, and the Department will continue to enforce the
disability laws that it is authorized to enforce. The Department also
wishes to emphasize that a recipient's obligation to respond to sexual
harassment incidents does not depend on the reporting complainant using
specific or particular language to describe an experience that may
constitute Title IX sexual harassment. The Supreme Court has noted that
whether conduct rises to the level of actionable harassment depends on
a ``constellation of surrounding circumstances, expectations, and
relationships'' including but not limited to ``the ages of the harasser
and the victim . . . .'' \1756\ Similarly, recognizing whether a
student has disclosed a Title IX sexual harassment incident includes
taking into account any disability the reporting student may have that
may affect how that student describes or communicates about the
incident.
---------------------------------------------------------------------------
\1756\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651
(1999) (internal citations omitted).
---------------------------------------------------------------------------
In response to commenters concerned that younger students, whether
because of age, development, or disability, reasonably cannot be
expected to report to a school's Title IX Coordinator, the final
regulations expand the definition of a recipient's actual knowledge to
include notice to any elementary or secondary school employee. Thus, in
an elementary or secondary school context, the school's response
obligations are triggered when, for instance, an employee in the
school's disability office, or the teaching aide of a student with
disabilities, has notice of a Title IX sexual harassment incident.
These final regulations therefore expand the pool of school employees
to whom any complainant, including a student with a disability, may
disclose sexual harassment and expect the school to respond as required
under Title IX, whether the student reports to a particular employee
due to feeling more comfortable or due to only being able to
communicate with special education staff.
With respect to commenters' concerns that individuals with certain
disabilities may face challenges accessing communication tools, such as
a phone or website, when trying to report a Title IX sexual harassment
incident, the Department reiterates that recipients must meet
obligations under these final regulations while also meeting all
obligations under applicable disability laws including the IDEA,
Section 504, and ADA, including with respect to accessibility of
websites and services. With respect to the intersection between the
Title IX final regulations and disability laws under which the
Department has enforcement authority, the Department will continue to
offer technical assistance to recipients.
Changes: We have revised Sec. 106.30 to expand the definition of
``actual knowledge'' to include notice to any employee of an elementary
or secondary school.
Comments: Commenters stated that the proposed rules seemed
concerned with the rights and needs of respondents with disabilities
(for instance, by expressly referencing the IDEA and ADA in the
emergency removal provision in Sec. 106.44(c) that applies to removing
a respondent), but not with the rights and needs of students with
disabilities who are sexually harassed, and commenters stated that
these students face unique challenges that would be intensified if the
proposed rules were implemented.
Commenters asserted that some disabilities may put people at higher
risk to be victims of crimes like sexual assault or abuse, for example
because someone who needs regular assistance may rely on a person who
is abusing them for care, and may be more likely to suffer physical and
mental illnesses
[[Page 30496]]
because of violence. Other commenters noted that students with
disabilities already face unfair challenges such as removal from
classes because of disproportionate discipline.
Commenters also stated that people hold negative stereotypes about
students with disabilities (such as being child-like for life, or
sexually deviant) that make Title IX proceedings more difficult.
Commenters stated that students with disabilities are less likely to be
believed when they report and often have greater difficulty describing
the harassment they experience, and that students with disabilities who
also identify as members of other historically marginalized and
underrepresented groups, such as LGBTQ individuals or persons of color,
are more likely to be ignored, blamed, and punished when they report
sexual harassment due to harmful stereotypes that label them as
``promiscuous.''
Discussion: To the extent that some commenters misconstrue the
final regulations to consider only the rights and needs of students
with disabilities who are accused of sexual harassment and not the
unique challenges facing students with disabilities who are sexually
harassed, the Department appreciates the opportunity to clarify that
recipients must comply with all disability laws protecting the rights
and accommodating the needs of students (and employees) with
disabilities regardless of whether such students (and employees) are
complainants or respondents in a Title IX sexual harassment situation.
The Department also notes that Sec. 106.44(a) has been revised to
require recipients to provide supportive measures as part of its prompt
and non-deliberately indifferent response to sexual harassment, and the
Title IX Coordinator must promptly contact the complainant to discuss
the availability of supportive measures as defined in Sec. 106.30,
consider the complainant's wishes with respect to supportive measures,
inform the complainant of the availability of supportive measures with
or without the filing of a formal complaint, and explain to the
complainant the process for filing a formal complaint. All
complainants, including complainants with disabilities, will receive
the benefit of supportive measures under Sec. 106.44(a).
The Department acknowledges that some disabilities may put people
at greater risk of being sexually assaulted or abused and that
individuals with disabilities may be more likely to suffer physical or
mental illness due to violence. The final regulations prescribe a
consistent framework for a recipient's response to Title IX sexual
harassment for the benefit of every complainant, including individuals
with disabilities and other demographic populations who may be at
higher risk of sexual assault than the general population.
To the extent that commenters accurately describe negative
stereotypes applied against students with disabilities, and
particularly against students with disabilities who are also students
of color or LGBTQ students, the final regulations expressly require
recipients to interact with every complainant and every respondent
impartially and without bias. A recipient that ignores, blames, or
punishes a student due to stereotypes about the student violates the
final regulations. We have revised Sec. 106.45(b)(1)(iii) prohibiting
Title IX Coordinators, investigators, decision-makers, and persons who
facilitate informal resolutions, from having conflicts of interest or
bias against complainants or respondents generally, or against an
individual complainant or respondent, by requiring training that also
includes ``how to serve impartially, including by avoiding prejudgment
of the facts at issue, conflicts of interest, and bias.'' No
complainant reporting Title IX sexual harassment should be ignored or
met with judgment or disbelief, and the final regulations obligate
recipients to meet response obligations impartially and free from bias.
The Department will vigorously enforce the final regulations in a
manner that holds recipients responsible for acting impartially without
bias, including bias based on an individual's disability status.
In further response to commenters' concerns that harmful
stereotypes may also lead a recipient to unfairly punish students with
disabilities reporting sexual harassment allegations, the Department
has added Sec. 106.71(a) to expressly prohibit retaliation and
specifically stating that charges against an individual for code of
conduct violations that do not involve sex discrimination or sexual
harassment, but arise out of the same facts or circumstances as a
report or complaint of sex discrimination, or report or formal
complaint of sexual harassment, for the purpose of interfering with any
right or privilege secured by Title IX or its implementing regulations,
constitutes retaliation. This section is intended to draw recipients'
attention to the fact that punishing a complainant with non-sexual
harassment conduct code violations (e.g., ``consensual'' sexual
activity when the complainant has reported the activity to be
nonconsensual, or underage drinking, or fighting back against physical
aggression) is retaliation when done for the purpose of deterring the
complainant from pursuing rights under Title IX. The Department notes
that this provision applies to respondents as well.
Changes: We have revised Sec. 106.45(b)(1)(iii) to include in the
required training how to serve impartially, including by avoiding
prejudgment of the facts at issue, conflicts of interest, and bias.
Additionally, we have added Sec. 106.71(a), prohibiting retaliation
and stating that charging an individual with a code of conduct
violation that does not involve sexual harassment but arise out of the
same facts or circumstances as sexual harassment allegations, for the
purpose of interfering with rights under Title IX, constitutes
retaliation.
Comments: Some commenters asserted that even in the higher
education context cross-examination would inhibit individuals with
disabilities from receiving equal access to the process. These
commenters asserted that the proposed rules made no exception for
individuals with disabilities who would require a reasonable
modification of the live cross-examination requirement in order to
testify in the proceeding, so the required live cross-examination would
place undue burden on individuals with various types of disabilities or
force recipients to violate Section 504 or the ADA. For example,
individuals with psychiatric disabilities such as post-traumatic stress
disorder, social anxiety disorder, or generalized anxiety disorder are
at particular risk of having their symptoms exacerbated by such a live
cross-examination process, potentially causing serious harm to their
wellbeing and their ability to function in interpersonal and academic
environments.
Additionally, commenters stated, individuals with various other
disabilities, especially those who utilize various verbal and nonverbal
communication methods and/or who have disabilities impacting their
receptive or expressive language, may also feel undue pressure of
needing to present details as evidence in such a time-constrained
environment.
Discussion: The Department reiterates that recipients must meet
obligations under these final regulations while also meeting all
obligations under applicable disability laws including the IDEA,
Section 504, and ADA. It is unnecessary to specify as an ``exception''
to the live hearing requirements in Sec. 106.45(b)(6)(i) that
recipients must also comply with disability laws. The Department notes
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that Sec. 106.45(b)(1)(v) expressly contemplates that good cause for
temporary delays or limited extensions of time frames relating to a
grievance process may include ``the need for language assistance or
accommodation of disabilities.'' With respect to the intersection
between the Title IX final regulations and disability laws under which
the Department has enforcement authority, the Department will continue
to offer technical assistance to recipients.
Changes: None.
Comments: Some commenters argued that the proposed rules fail to
recognize the difference between the procedural requirements elementary
and secondary school students have under the IDEA and how Title IX, the
ADA, and Section 504 each distinctively require equal educational
opportunity for all students with disabilities at all levels
(elementary, secondary, and postsecondary institutions that receive
Federal funds). Some commenters asserted that many students will be
denied access to free appropriate public education (FAPE) under the
IDEA if bullying is carved out of the definition of sexual harassment,
and that school districts should have the flexibility to investigate
allegations of sexual harassment and impose disciplinary consequences
in accordance with school district policies, as well as to determine
what additional supports and services may be necessary to ensure a safe
and welcoming environment for all students. Other commenters stated
that an incident under Title IX may also trigger a need for an
individualized education plan (IEP) team to meet to discuss behavior
modifications.
Some commenters requested that the final regulations clarify that
segregation of elementary and secondary school students with
disabilities from classroom settings should be rare and only allowed
when in compliance with IDEA; that recipients must be made aware that a
student with a disability does not have to be eligible for FAPE in
order to be protected under the disability laws; and that, although
IDEA may have additional requirements to provide FAPE, recipients must
not be misled into thinking there are different standards for
elementary and secondary school and postsecondary education
environments when it comes to equal access to educational
opportunities.
Discussion: The Department reiterates that recipients, including
elementary and secondary schools and postsecondary institutions, must
meet obligations under the final regulations while also meeting all
obligations under applicable disability laws including the IDEA,
Section 504, and ADA. With respect to the intersection between these
Title IX final regulations, and disability laws under which the
Department has enforcement authority, the Department will continue to
offer technical assistance to recipients. Recipients' obligation to
comply both with these final regulations and with disability laws
applies to all aspects of responding to a Title IX sexual harassment
incident including investigation, discipline, and segregating
elementary and secondary school students with disabilities from
classroom settings. Nothing in these final regulations precludes or
impedes a recipient from determining what services may be necessary to
ensure a safe, welcoming environment for all students.
The Department does not fully understand the commenter's concern
that bullying will be ``carved out'' of the definition of Title IX
sexual harassment. Section 106.30 defining sexual harassment for Title
IX purposes does not reference bullying or carve it out. To the extent
that conduct understood as ``bullying'' is also conduct on the basis of
sex that meets the definition in Sec. 106.30, such conduct is also
Title IX sexual harassment. Additionally, these final regulations
expressly prohibit retaliation in Sec. 106.71, and to the extent that
``bullying'' constitutes retaliation as defined in Sec. 106.71(a),
such conduct is strictly prohibited.
Changes: None.
Comments: Some commenters asserted that students with disabilities
are improperly accused and mistreated in Title IX hearings in the
elementary and secondary school and college settings, where their due
process rights are often ignored, and they are not treated equitably.
One commenter expressed concern that the grievance procedures outlined
in the proposed rules rely heavily on a written communication modality,
which may mean that individuals with communication disorders and
disabilities, may not have access to the complaint process and
suggested that the proposed rules should be revised to include other
modalities, such as oral, manual, augmentative and alternative
communication (AAC) techniques, and assistive technologies, that allow
individuals with disabilities and individuals who rely on AAC
technology to use unaided systems such as gestures, facial expressions,
or sign language, or they may use basic aided systems including picture
boards or high-tech aided systems such as speech-generating devices.
Several commenters expressed concern that Sec. 106.45(b)(7)
(prescribing what a written determination regarding responsibility must
include) does not adequately protect students with disabilities.
Some commenters stated that institutions of higher education should
coordinate with their offices of disability services to identify
students with disabilities who are involved in Title IX proceedings
(while respecting student privacy rights), and disseminate Title IX
information in ways that are accessible to all students (including
website accessibility, and provided in plain language for students with
intellectual disabilities). Commenters stated that electronic file
sharing may create barriers for students with disabilities to review
the materials confidentially, and that the proposed rules require
documents in writing and other processes that are not accessible to
many students with disabilities.
Commenters stated that the final regulations should require
recipients to be on notice that they must consider the unique needs of
students with disabilities throughout the entire Title IX process, not
just during an emergency removal determination (referring to Sec.
106.44(c)). Some commenters specifically requested that recipients be
instructed to provide training to any officials involved in Title IX
proceedings (including any faculty or staff with reporting obligations
under Title IX, and, per some commenters, campus police officers and
per other commenters, all elementary and secondary school employees)
that explicitly includes information about how to meet the needs of
students with disabilities, the various ways in which students with
invisible disabilities may behave as a complainant or respondent in a
Title IX proceeding, and the intersection of Title IX, the ADA, and the
IDEA. Similarly, commenters requested that the final regulations
require schools to ensure that pre-existing resource guides for
students involved in Title IX proceedings also include specialized
resources for students with invisible disabilities.
Other commenters stated that institutions for higher education are
not providing their faculty and staff with the necessary training for
them to identify and accommodate the unique needs of students with
invisible disabilities if one of these students were to become involved
in a Title IX proceeding, as either a complainant or respondent. These
commenters argued that as to prevention, due process, and supportive
measures, there are numerous advantages in recognizing and addressing
the intersection between students with disabilities and sexual
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harassment, both for alleged perpetrators and alleged victims.
Commenters asserted that failure of a student to access disability
services can result in the complainant or respondent being placed at a
distinct disadvantage during the Title IX proceedings. Commenters
suggested that one way to connect the university's disability services
with the Title IX office might be to have students who may need
accommodations to provide advance permission for a disciplinary office
to consult with the disability office, should the student be subjected
to a disciplinary proceeding, thereby alerting the Title IX office of
the student's disability and ensuring the student's disability rights
are protected. Other commenters suggested that the Title IX office
should provide all students with a notification form at the beginning
of the process informing the student that if the student has a
documented disability, the student may have the right to accommodations
during the Title IX process, for example by modifying a university's
enrollment intake form to include the option: ``If you are ever a party
in any disciplinary proceeding on campus, do you give permission for
the discipline officers to be given information about your disability
and for the disability office to be notified?'' Related to that waiver,
some commenters requested that the Department instruct each school to
properly inform students of their right to inform their parents about
their involvement in a Title IX proceeding, and any additional
ramifications that may arise from their decision to waive their
confidentiality rights so as to ensure that any students exercise of
such a waiver is done in an informed manner.
Commenters also stated that the Department should expand the
proposed rules to provide explicit support for complainants and
respondents with disabilities, for example by allowing the presence of
a ``support person'' separate and apart from the student's Title IX
advisor. Some commenters requested that the final regulations specify
that recipients have an affirmative duty to communicate the nature of
the allegation and inquire whether a person needs an accommodation in a
way that people with an intellectual disability can understand and
respond, and that campus police enforcing Title IX must be trained on
how to interact with students with disabilities in ways that are not
harmful to the learning environment.
Some commenters stated that at small institutions of higher
education there is a conflict of interest if the Title IX investigator
is also the ADA compliance officer, which diminishes the protection of
students with disabilities.
Some commenters stated that many colleges' and universities' Title
IX offices do not have accessible facilities for students.
Some commenters requested the Department consider how allowing
parties to review even evidence the investigator deems irrelevant
(Sec. 106.45(b)(5)(vi)) could result in disclosure of private
disability-related information.
Some commenters requested that other specific disability
accommodations be described in the final regulations including:
accessible formatting of all written and recorded based
documentation based upon the person's individually specific needs;