Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 30026-30579 [2020-10512]

Download as PDF 30026 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 Office for Civil Rights, Department of Education. ACTION: Final rule. AGENCY: 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, SUMMARY: VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Room 4E308, Washington, DC 20202. Telephone: (202) 453–6639. Email: Alejandro.Reyes@ed.gov. 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 § 106.45 Similarities and Differences Between the § 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 § 106.44(a) General Support and Opposition for the Grievance Process in § 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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 § 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 § 106.44(b)(2) Reports by Multiple Complainants of Conduct by E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Same Respondent [Removed in Final Regulations] Proposed § 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 ReWeigh 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 CrossExamination 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 30027 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 § 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 [§ 106.45(b)(7)(iv) Title IX Coordinator Responsible for Effective Implementation of Remedies: Addressed Under § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30028 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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. 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. 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 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.’’). 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). 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. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations (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 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/qa201404-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-ix201709.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- VerDate Sep<11>2014 20:34 May 18, 2020 Jkt 250001 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. 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 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/princetonletter.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.’’). 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. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 30029 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. 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 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. E:\FR\FM\19MYR2.SGM 19MYR2 30030 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 nonDepartment 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 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.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 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 20 See the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. 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. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 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: D Define the conduct constituting sexual harassment for Title IX purposes; D 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; D Specify conditions that require a recipient to initiate a grievance process to investigate and adjudicate allegations of sexual harassment; and D 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 22 83 FR 61462 (Nov. 29, 2018) (to be codified at 34 CFR pt. 106). 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 The Department uses the phrase ‘‘Title IX sexual harassment’’ to refer to the conduct defined in § 106.30 to be sexual harassment as well as the conditions described in § 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 § 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 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 29 20 U.S.C. 1232g. U.S.C. 1092(f). 31 34 U.S.C. 12291 et seq. (formerly codified at 42 U.S.C. 13925). 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 § 106.30. 30 20 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 30031 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 § 106.30 apply to a term in a specific regulatory provision, some of the regulatory provisions specifically refer to a term ‘‘as defined in § 106.30’’ to provide additional clarity.35 Notwithstanding these points of additional clarification in certain regulatory provisions, the definitions in § 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. 34 Provisions proposed in the NPRM, as renumbered in these final regulations, are: Proposed § 106.44(b)(2) eliminated in the final regulations. Proposed § 106.44(b)(3) eliminated in the final regulations. Proposed § 106.44(b)(4) eliminated in the final regulations. Proposed § 106.44(b)(5) in the final regulations as § 106.44(b)(2). Proposed § 106.45(b)(3)(i) in the final regulations as § 106.45(b)(5)(i). Proposed § 106.45(b)(3)(ii) in the final regulations as § 106.45(b)(5)(ii). Proposed § 106.45(b)(3)(iii) in the final regulations as § 106.45(b)(5)(iii). Proposed § 106.45(b)(3)(iv) in the final regulations as § 106.45(b)(5)(iv). Proposed § 106.45(b)(3)(v) in the final regulations as § 106.45(b)(5)(v). Proposed § 106.45(b)(3)(vi) in the final regulations as § 106.45(b)(6)(ii). Proposed § 106.45(b)(3)(vii) in the final regulations as § 106.45(b)(6)(i). Proposed § 106.45(b)(3)(viii) in the final regulations as § 106.45(b)(5)(vi). Proposed § 106.45(b)(3)(ix) in the final regulations as § 106.45(b)(5)(vii). Proposed § 106.45(b)(4) in the final regulations as § 106.45(b)(7). Proposed § 106.45(b)(5) in the final regulations as § 106.45(b)(8). Proposed § 106.45(b)(6) in the final regulations as § 106.45(b)(9). Proposed § 106.45(b)(7) in the final regulations as § 106.45(b)(10). 35 E.g., §§ 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). E:\FR\FM\19MYR2.SGM 19MYR2 30032 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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. 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 36 441 U.S. 677, 717 (1979). 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. 41 Cannon, 441 U.S. at 704–06. 37 503 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 judicial and administrative enforcement both help ensure ‘‘the orderly enforcement of the statute’’ to achieve Title IX’s purposes.42 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 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 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.’’). 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’’). 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. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 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 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 48 526 U.S. 629 (1999). 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. 49 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 53 34 CFR 106.8(a). 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.’’). 54 34 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 30033 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; • 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 57 The final regulations define sexual harassment in § 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). 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., § 106.8. 59 The final regulations define ‘‘actual knowledge’’ in § 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. E:\FR\FM\19MYR2.SGM 19MYR2 30034 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 • 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 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 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. § 106.44(a); § 106.44(b)(1); § 106.45(b)(3)(i); § 106.45(b)(1)(i); § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 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 65 2001 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.’’). PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 Guidance at iii–iv. 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 . . . .’’). 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. 66 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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 § 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. 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 studenton-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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 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).’’). 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 peeron-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. 81 Davis, 526 U.S. at 652. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 30035 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 threepart 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. 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 82 Perez v. Mortgage Bankers’ Ass’n, 575 U.S. 92, 97 (2015). 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. E:\FR\FM\19MYR2.SGM 19MYR2 30036 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations required under State or other laws to adopt those standards. 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. 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 87 2001 Guidance at 2; 1997 Guidance. ‘‘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, 88 The VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 § 106.30 definition of sexual harassment, without requiring those sex offenses to meet the Davis elements of severity, pervasiveness, and objective and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’’); § 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. 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 oneon-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. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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 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 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. 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 fifthgrade 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 The Department is persuaded by the Supreme Court’s reasoning that 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. 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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,106 101 Davis, 526 U.S. at 651–52 (citing Meritor, 477 U.S. at 67). 102 20 U.S.C. 4071(a). 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 collegestudent relationship to emphasize student freedom PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 30037 and it is not common for an institution to prohibit or discourage students from engaging in romantic interactions in the college environment.107 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 sexbased 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 § 106.30 definition of sexual harassment, as acknowledged by the Department’s change to § 106.45(b)(3)(i) 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). E:\FR\FM\19MYR2.SGM 19MYR2 30038 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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. 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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. These final regulations adopt the actual knowledge condition from the 114 Gebser, 524 U.S. at 290. 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 § 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. 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). 115 Id. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 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. 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 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); § 106.8(a); § 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). 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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. 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 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. 124 The § 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. Under these final regulations, in elementary and secondary schools, 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 § 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.’’). PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 30039 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 127 See 2001 Guidance at 13. 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 128 Davis, E:\FR\FM\19MYR2.SGM Continued 19MYR2 30040 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 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 § 26–14–3; Alaska Stat. § 47.17.020; Ariz. Rev. Stat. § 13–3620; Ark. Code Ann. § 12–18–402; Cal. Penal Code § 11165.7; Colo. Rev. Stat. § 19–3–304; Conn. Gen. Stat. § 17a–101; Del. Code Ann. tit. 16, § 903; DC Code § 4–1321.02; Fla. Stat. § 39.201; Ga. Code Ann. § 19–7–5; Haw. Rev. Stat. § 350–1.1; Idaho Code Ann. § 16–1605; 325 Ill. Comp. Stat. § 5/4; Ind. Code § 31–33–5–1; Iowa Code § 232.69; Kan. Stat. Ann. § 38–2223; Ky. Rev. Stat. Ann. § 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 22, § 4011–A; Md. Code Ann., Fam. Law § 5–704; Mass. Gen. Laws ch. 119, § 21; Mich. Comp. Laws § 722.623; Minn. Stat. § 626.556; Miss. Code. Ann. § 43–21–353; Mo. Ann Stat. § 210.115; Mont. Code Ann. § 41–3–201; Neb. Rev. Stat. § 28–711; Nev. Rev. Stat. § 432B.220; N.H. Rev. Stat. Ann. § 169–C:29; N.J. Stat. Ann. § 9:6– 8.10; N.M. Stat. Ann. § 32A–4–3; N.Y. Soc. Serv. Law § 413; N.C. Gen. Stat. Ann. § 7B–301; N.D. Cent. Code Ann. § 50–25.1–03; Ohio Rev. Code Ann. § 2151.421; Okla. Stat. tit. 10A, § 1–2–101; Or. Rev. Stat. § 419B.010; 23 Pa. Cons. Stat. Ann § 6311; R.I. Gen. Laws § 40–11–3(a); S.C. Code Ann. § 63– 7–310; S.D. Codified Laws § 26–8A–3; Tenn. Code Ann. § 37–1–403; Tex. Fam. Code § 261.101; Utah Code Ann. § 62A–4a–403; Vt. Stat. Ann. tit. 33, § 4913; Va. Code Ann. § 63.2–1509; Wash. Rev. Code § 26.44.030; W. Va. Code § 49–2–803; Wis. Stat. § 48.981; Wyo. Stat. Ann. § 14–3–205. 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 StudentUniversity 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)). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 132 The § 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). PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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. The final regulations depart from the constructive notice condition described in Department guidance that stated that 133 E.g., 2001 Guidance at 13. 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 § 106.8(a)); § 106.8(b) (requiring the Title IX Coordinator’s contact information to be displayed prominently on the recipient’s website); § 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). 134 Section E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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. 137 2001 Guidance at 13. 138 Section 106.44(b)(1) (stating a recipient must investigate in response to a formal complaint); § 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 § 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 140 Section 106.8(a) (stating any person may report sexual harassment using the Title IX Coordinator’s listed contact information); § 106.8(b) (stating recipients must prominently display the Title IX Coordinator’s contact information on their websites); § 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). 141 2001 Guidance at 13–14. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 30041 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.144 142 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); § 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 § 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30042 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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.’’). 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 ‘‘widenet 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 demonstrate is that respecting an alleged victim’s autonomy,151 giving alleged victims control over how official systems respond to an alleged victim,152 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 selfgovernance 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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). 156 Section 106.44(a) (describing a recipient’s general response obligations). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 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 wellcrafted 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.’’). 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); § 106.8(b) (requiring a recipient to post the Title IX Coordinator’s contact information on the recipient’s website); § 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). PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 30043 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 nonbusiness hours,159 for reporting sexual harassment in order to trigger the postsecondary institution’s response obligations. 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. 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 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). 160 Section 106.30 (defining ‘‘actual knowledge’’). E:\FR\FM\19MYR2.SGM 19MYR2 30044 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 § 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 161 Davis, 526 U.S. at 648–49. 524 U.S. at 290 (deliberate indifference ensures that the recipient is liable for ‘‘its own official decision’’ to permit discrimination). 163 Under § 106.44(a) the recipient must respond in a manner that is not clearly unreasonable in light of the known circumstances, and under § 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 § 106.30) unless, for example, a complainant does not wish to receive supportive measures. Under § 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. 162 Gebser, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 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. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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. 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 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 § 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 § 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. § 106.44(a); § 106.44(b)(1); § 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 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’’); § 106.44(a); § 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 30045 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 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); § 106.45(b)(3)(i); § 106.30 (defining ‘‘formal complaint’’). 176 Section 106.44(a); § 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30046 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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, ageappropriate 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. 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 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. § 106.44(a); § 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); § 106.30 (defining ‘‘supportive measures’’ as ‘‘individualized services’’). 180 2001 Guidance at 16. 181 Section 106.44(c). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 182 Section 106.44(b)(2) (providing that recipient responses to sexual harassment must be nondeliberately indifferent, meaning not clearly unreasonable in light of the known circumstances, and must comply with all the specific requirements in § 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). 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 notrespass 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. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 of educational access without due process or fundamental fairness.185 Additionally, the Department clarifies in § 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 § 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 § 106.44(a) the Department reinforces the premise of § 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. 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 nondeliberately indifferent response to sexual harassment.188 Similarly, the 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. 186 2001 Guidance at 22. 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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). 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 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.’’). 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.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 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 § 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. 192 2001 Guidance at 22. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 30047 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 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. 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 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. 195 2001 Guidance at 22. E:\FR\FM\19MYR2.SGM 19MYR2 30048 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 dueprocess 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipients since issuance of the nowwithdrawn 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 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 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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. 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 nowwithdrawn 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 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). 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 determinations regarding responsibility viewed as unjust and unfair to complainants, and other determinations regarding responsibility viewed as unjust and unfair to respondents.206 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 ‘‘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.’’). 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. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 30049 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 nondiscrimination 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 § 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 The § 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 30050 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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—wellintentioned 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 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.213 211 Edmund G. Brown, Jr., Governor’s Veto Message (Oct. 15, 2017) (responding to California Senate Bill 169). 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 through the decision-maker(s), while the final regulations, § 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. 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). PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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. 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.225 219 See id. 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 220 342 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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). 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)). 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 § 106.45 grievance process prescribed in the final regulations is consistent with constitutional due process guarantees 235 and conceptions 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.) 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 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 30051 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 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 crossexamination, 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 § 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30052 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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. 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. 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). 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 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 § 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. § 106.6(g). 247 Section 106.45(b)(6)(i)-(ii). 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 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 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 106.45 grievance process. However, the § 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 § 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 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 based on the size of a recipient’s student body or the amount of a recipient’s revenues. 253 See Goss, 419 U.S. at 578–79. 254 See § 106.45(b)(3); § 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.45 As a whole, § 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: (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 257 Although not located in § 106.45, the final regulations also add § 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. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 30053 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 E:\FR\FM\19MYR2.SGM 19MYR2 30054 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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, decisionmakers, 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Similarities and Differences Between the § 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 § 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 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 § 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); § 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); § 106.45(b)(5)(vii); § 106.45(b)(6). PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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 Some provisions in § 106.45 address topics by requiring procedures that Department guidance did not address, or addressed as a recommendation. For instance, § 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 § 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 263 Section 106.45(b)(1)(x). 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. 269 2017 Q&A at 4. 270 2011 Dear Colleague Letter at 12. 264 Section E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 nonhearing 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 crossexamination by the parties’ advisors, as required for postsecondary institutions under § 106.45(b)(6)(i). In some significant respects, § 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, § 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, § 106.45(b)(1)(vii) and § 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 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. 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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, § 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 § 106.45(b)(9)(iii), did not prohibit informal resolution of allegations that an employee sexually harassed a student. 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 nondiscrimination mandate in a manner consistent with constitutional due process and fundamental fairness, the § 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. 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. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 30055 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 nonemployees 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 E:\FR\FM\19MYR2.SGM 19MYR2 30056 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 selfesteem, 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 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. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations • 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 crossexamination 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 studentrespondents 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 selfproclaimed 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 30057 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 E:\FR\FM\19MYR2.SGM 19MYR2 30058 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 unAmerican. • 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 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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-ixenforcement. 283 Id. 284 Id. 285 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 issues, these final regulations even better reflect those principles. 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. 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 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 § 106.44(c); a non-student employee-respondent may be placed on administrative leave during pendency of a grievance process under § 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 § 106.45(b)(9). PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 30059 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 E:\FR\FM\19MYR2.SGM 19MYR2 30060 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 nondiscriminatory 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 noticeand-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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 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. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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.’’). PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 30061 The Department will continue to recognize, as has the Supreme Court, that sexual harassment, including peeron-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 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30062 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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, unChristian, 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 291 See also the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 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 292 The 2001 Guidance under the heading ‘‘Prevention’’ states: ‘‘Further, training for administrators, teachers, and staff and ageappropriate 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. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 30063 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 E:\FR\FM\19MYR2.SGM 19MYR2 30064 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 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 nondeliberately 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 § 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 § 106.44(a) to state that as part of a recipient’s E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 twotiered 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 30065 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 § 106.30 to expressly include domestic violence (and dating violence, and stalking) as those offenses are defined under VAWA, amending the Clery Act. 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 § 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 § 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 § 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 § 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, 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. E:\FR\FM\19MYR2.SGM 19MYR2 30066 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 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 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 294 The Department also notes that where crossexamination 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. § 106.45(b)(6)(i). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Title IX obligations. The Department disagrees with a commenter’s contention that the final regulations enable school administrators to sexually abuse students; § 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 § 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 nondiscrimination 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 § 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 nondiscrimination 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- PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 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 § 106.30 to include dating violence, domestic violence, and stalking as those offenses are defined under VAWA, amending the Clery Act. We have revised § 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 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-ixenforcement. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. Changes: The Department has expanded the definition of ‘‘actual knowledge’’ in § 106.30 to include reports to any elementary or secondary school employee. We have revised § 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, 296 Section 106.30 (defining ‘‘actual knowledge’’). 297 Section 106.8(b). 298 Section 106.8(a). 299 Section 106.44(a). PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 30067 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 § 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 30068 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations implementation, commenters argued, is not a reason to change the regulations. 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 inclass 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 § 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 Center for Injury Prevention and Control, Centers for Disease Control and Prevention (2019). 303 E.g., Jeffrey J. Nolan, Fair, Equitable TraumaInformed 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). PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 30069 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, § 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, crossexamination 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 The Department disagrees that the final regulations make survivors prove their abuse is worthy of attention or action, because the § 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 § 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 § 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 § 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 304 Section E:\FR\FM\19MYR2.SGM 106.45(b)(6)(i). 19MYR2 30070 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations made the report of sexual harassment. We have revised § 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 § 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, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 leaving discipline decisions within the discretion of recipients. Changes: We have revised the § 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 § 106.8(a). We have revised § 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 § 106.30 definition of ‘‘complainant’’ to mean any individual ‘‘who is alleged to be the victim’’ of sexual harassment. We have revised § 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 § 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 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 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 nondiscrimination 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)). 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 highprofile 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 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/dueprocess-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-indexarchives. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 307 See Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915); § 106.6(d)(1). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 witnesses during a Title IX process, subject to the recipient’s ability to meet its Title IX obligations consistent with constitutional protections. The statutory exceptions to Title IX mentioned by at least one commenter (i.e., Boys State or Girls’ State conferences, father-son or motherdaughter 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 § 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 § 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 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 30071 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 § 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 § 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 § 106.44 and the grievance process in § 106.45 apply only to allegations of Title IX sexual harassment; the final regulations impose no new obligations or requirements with respect to nonTitle 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 E:\FR\FM\19MYR2.SGM 19MYR2 30072 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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. 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.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 nondiscrimination, 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 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 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, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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: HelpSeeking 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • • • • • • • • • • • • • • • 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 Crossexamination Out of College SexualAssault 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). PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 30073 • 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). E:\FR\FM\19MYR2.SGM 19MYR2 30074 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations • 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 sexbased 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • • • • • • • • • • • • • • • • • 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 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 • • • • • • • • • • • • • • • • • 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations • 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-g 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 30075 adolescent peer-on-peer sexual assault victimization.310 • One in four young women experiences sexual assault before the age of 18.311 • One study found that ten percent of children were targets of educator sexual misconduct by the time they graduated from high school.312 • 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 • 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 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). 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)). 312 Commenters cited: Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis of Existing Literature (2004) (prepared for the U.S. Dep’t. of Education). 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). E:\FR\FM\19MYR2.SGM 19MYR2 30076 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 • 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 • 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 • 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 • 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 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). 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). 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). 321 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 or bullying on the basis of sex, showing that students experience far more sexual harassment than schools report.322 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 • 62 percent of women and 61 percent of men experience sexual harassment during college.327 • 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 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-harassmentand-assault/. 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). 327 Commenters cited: American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005). PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 experienced stalking since entering college.328 • 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 • 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, exboyfriend, classmate, friend, acquaintance, or coworker.331 • 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 • 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 • 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 • Twenty-one to 38 percent of college students experience faculty/staffperpetrated sexual harassment and 39 to 64.5 percent experience student328 Commenters cited: Rape, Abuse & Incest National Network (RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/ statistics/campus-sexual-violence. 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). 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). 332 Commenters cited: David Lisak & Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002). 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/. 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations perpetrated sexual harassment during their time at their university.335 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 • 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 raperelated 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.341 335 Commenters cited: Marina N. Rosenthal et al., Still second class: Sexual harassment of graduate students, 40 Psychol. of Women Quarterly 3 (2016). 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). 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, Raperelated 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • 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 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 • 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 • Approximately 26 percent of gay men, and 37 percent of bisexual men, experience rape, physical violence, or stalking by an intimate partner.348 342 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). 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/scopeproblem. 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). 348 Commenters cited: Human Rights Campaign, Sexual Assault and the LGBTQ Community, https:// PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 30077 • Men are more likely to be assaulted than falsely accused of assault.349 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 • 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 www.hrc.org/resources/sexual-assault-and-the-lgbtcommunity; 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. 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). 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. E:\FR\FM\19MYR2.SGM 19MYR2 30078 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 • 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 • 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 • 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 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). 353 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 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). 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 • 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 • 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 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. 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). PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 being sexually harassed, with harassment especially extensive among LGBTQ students, causing nearly onethird to say that they felt unsafe or uncomfortable enough to miss school.361 • 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 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 361 Commenters cited: Laura Kann et al., Youth Risk Behavior Surveillance—United States, 2017, 67 Morbidity & Mortality Weekly Report 8 (Jun. 15, 2018). 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). 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations survived sexual assault.365 Of women who identify as multiracial, 32.3 percent are sexually assaulted.366 • 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 • Among Hispanic women, 13.6 percent are survivors of sexual assault.370 • 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 • Of Asian Pacific Islander women, 23 percent experienced sexual violence. Of Asian Pacific Islander men, nine percent experienced sexual violence.372 365 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). 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). 370 Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, STOP SV: A Technical Package to Prevent Sexual Violence (2016). 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. 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • 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 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 • 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 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). 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. PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 30079 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 • 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 • 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 • 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 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 non378 Commenters cited: Patricia A. Findley et al., Exploring the experiences of abuse of college students with disabilities, 31 Journal of Interpersonal Violence 17 (2015). 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. 382 Commenters cited: Joseph Shapiro, The Sexual Assault Epidemic No One Talks About, NPR (Jan. 8, 2018). 383 Commenters cited: Disabled World, People with Disabilities and Sexual Assault (2012), https:// www.disabled-world.com/disability/sexuality/ assaults.php. E:\FR\FM\19MYR2.SGM 19MYR2 30080 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations immigrant peers to have experienced incidents of sexual assault.384 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 • 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 • 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.387 384 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.). 385 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). 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). 387 Commenters cited: National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 2016). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • 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 • 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 • 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. • 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 • 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 • Being a victim of sexual assault can cause both immediate and long-term 388 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). 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). 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). 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. 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). PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 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 • 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 • 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, 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). 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 • 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 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 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. 401 Commenters cited: Eduardo Porter, Dropping Out of College, and Paying the Price, The New York Times (June 26, 2013). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 • 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 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 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). 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). PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 30081 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 • 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 • 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 • 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 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). 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). 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). E:\FR\FM\19MYR2.SGM 19MYR2 30082 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 • 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 • 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 • 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 • 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 ‘‘unmasculine.’’ 415 • 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 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). 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). 412 Commenters cited: New Jersey Task Force on Campus Sexual Assault, 2017 Report and Recommendations (June 2017). 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). 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 • 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. • 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 • 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 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). 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). 419 Commenters cited: Rebecca Campbell, Survivors’ Help-Seeking Experiences with the Legal and Medical Systems, 20 Violence & Victims 1 (2005). PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 other violent crimes against Native American women.420 • 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 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 § 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, § 106.30 defining ‘‘actual knowledge’’ now provides that notice of sexual harassment to any employee triggers the recipient’s response 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-challengesimpacting-native-american-alaskan-village. 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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). Every Title IX Coordinator must be free from conflicts of interest and bias and, under revised § 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 § 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 § 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 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 § 106.8(a). We have revised § 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 § 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 § 106.71 prohibiting retaliation against any person exercising rights under Title IX, and § 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 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 30083 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. 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 30084 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 nonsexual 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, § 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 § 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 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 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 § 106.45(b)(5)(iii). Changes: The Department has revised § 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 § 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 § 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations are,425 reflecting a society-wide misconception about women falsely alleging rape. 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.’’ 427 425 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). 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.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 nondiscrimination 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 § 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. 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 nondiscrimination 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 428 Section 106.44(a). final regulations revise § 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 § 106.45. 429 The PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 30085 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 nonresponsibility 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 § 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 430 Section E:\FR\FM\19MYR2.SGM 106.71. 19MYR2 30086 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. Changes: The Department has added § 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 § 106.44(a) Comments: A number of commenters expressed general support for § 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 § 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; VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 prowomen. 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 § 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 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 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 § 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 § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 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 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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, § 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 § 106.8(a) and § 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.431 431 Section 106.8(a) states that any person may report sexual harassment (whether or not the person VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. Changes: The Department revised § 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 § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. The Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 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 § 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 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 § 106.8(a). See also discussion of anonymous reporting in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 30087 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 § 106.8(a) and § 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 § 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 § 106.44(a), in conjunction with the way that actual knowledge was defined in § 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 § 106.30 defining actual knowledge to include notice to any elementary and secondary school employee. E:\FR\FM\19MYR2.SGM 19MYR2 30088 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations We also agree with commenters to the extent that proposed § 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, § 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 § 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 § 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, § 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 § 106.44(a) to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 require that the recipient respond promptly, and by offering supportive measures to complainants while refraining from punishing a respondent without following the § 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 § 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 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 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 courtissued 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 retaking 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 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations as the Title IX Coordinator pursuant to § 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 § 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 § 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 432 See § 106.30 defining ‘‘actual knowledge’’ and § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 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). PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 30089 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 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 434 While the final regulations at § 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. § 106.71 (prohibiting retaliation against any person exercising rights under Title IX, including participation or refusal to participate in any grievance process). E:\FR\FM\19MYR2.SGM 19MYR2 30090 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 nondiscrimination 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 § 106.45(b)(3)(i), if the conduct alleged does not meet the definition of Title IX sexual harassment. 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 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 435 See the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 436 E.g., § 106.45(b)(5)(iv) gives both parties equal opportunity to be assisted by an advisor of choice. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respond to allegations of sexual harassment as defined in § 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. Changes: We have revised § 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 § 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 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 § 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. PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 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 agreedupon 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 § 106.44(a) and Title IX Coordinators must be trained to serve impartially, without prejudgment of the facts and without bias, under § 106.45(b)(1)(iii). A recipient may impose disciplinary sanctions upon a respondent after a grievance process that complies with § 106.45. Requiring recipients to offer supportive measures to the complainant and follow a grievance process under § 106.45 prior to disciplining the respondent helps ensure that a recipient’s response treats complainants and respondents fairly. Moreover, the final regulations add § 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 § 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 § 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 § 106.44(a) that responding in a nondeliberately indifferent manner to a complainant does not require restricting constitutional rights.438 438 Similarly, the Department emphasizes the purpose of § 106.6(d) in new § 106.71(b) E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 § 106.44(a), and providing a formal complaint process with robust due process protections beneficial to both parties as described in § 106.45. Where a formal complaint triggers a grievance process, § 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 § 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 (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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 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-employeesexual-misconduct (noting one in three employeerespondents in elementary and secondary schools sexually abuse multiple student victims). PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 30091 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 440 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648–49 (1999). E:\FR\FM\19MYR2.SGM 19MYR2 30092 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations flexibility to make disciplinary decisions and provide supportive measures that best respond to particular incidents of sexual harassment. Sexual harassment incidents present contextdriven, 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 § 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 The Department acknowledges that the deliberate indifference standard in § 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 sex441 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. §§ 106.45(b)(1)(i), 106.45(b)(7)(iv), 106.44(b)(2). 442 Section 106.45(b)(1)(i). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 § 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-onstudent sexual harassment. 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 443 2001 Guidance at iv, vi. 526 U.S. at 645. 444 Davis, PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 matter, but such failure to comply, alone, does not warrant changing the standard. Changes: In addition to the changes previously noted, § 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 § 106.44(a) to specify that a recipient must offer supportive measures to a complainant, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and must include a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30. Additionally, as explained in more detail below, the Department has revised § 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 § 106.44(a); and a requirement to investigate and adjudicate in accordance with § 106.45 in response to a formal complaint, in § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 445 20 446 34 PO 00000 U.S.C. 1687. CFR 106.2(h). Frm 00069 Fmt 4701 Sfmt 4700 30093 to clarify that a recipient’s ‘‘education program or activity’’ may also include situations that occur off campus, the Department adds to § 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 § 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 § 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. The Department is revising the definition of ‘‘formal complaint’’ in § 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 447 We have revised § 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. E:\FR\FM\19MYR2.SGM 19MYR2 30094 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 Changes: The Department has revised § 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. 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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. Changes: None. General Support and Opposition for the Grievance Process in § 106.45 Comments: Many commenters favored the § 106.45 grievance process on grounds that it would provide greater clarity, bring fairness to all parties, increase public confidence in schoollevel 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 § 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 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’’). 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 nondiscrimination 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. PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 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 § 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 § 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 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 At least one commenter supported the § 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 § 106.45 requirements are sex neutral and narrowly tailored to prevent sex discrimination. One commenter asserted with approval that the § 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 § 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 § 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 § 106.45 by charging students with non-Title IX student conduct code violations. One 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.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenter asked the Department to clarify whether § 106.45 applies to nonsexual harassment sex discrimination complaints. Discussion: The Department appreciates the variety of reasons for which commenters expressed support for the § 106.45 grievance process. The provisions in § 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 § 106.45 primarily benefits women and others believe such provisions primarily benefit men; however, the Department agrees with still other commenters who support § 106.45 because its procedural protections provide all complainants and respondents with a consistent, reliable process without regard to sex. The Department will enforce § 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 § 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 § 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 § 106.45’’ throughout the final regulations rather than ‘‘grievance procedures’’ or ‘‘due process protections’’ to reinforce that the entirety of § 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 § 106.45 to begin with the phrase ‘‘When investigating a formal complaint, and throughout the grievance process, a PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 30095 recipient must . . .’’ (emphasis added) to clarify that the procedures and protections in § 106.45(b)(5) apply to investigations but also throughout the grievance process. The Department appreciates the commenter’s concern that § 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 § 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 § 106.30 may be addressed by the recipient under other provisions of the recipient’s code of conduct, and we have revised § 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 § 106.45.452 In response to a commenter’s request for clarification, § 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 § 106.8(c). Changes: To clarify that the ten groups of provisions that comprise § 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 § 106.45’’ (for example, in § 106.44(a)), and uses the phrase ‘‘grievance process’’ rather than ‘‘grievance procedures’’ within § 106.45. Additionally, § 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. 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 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.’’). 453 See the ‘‘Summary of § 106.45’’ subsection of the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30096 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 § 106.45 obligates a recipient to follow a consistent grievance process to investigate and adjudicate allegations of sexual harassment. In § 106.30, ‘‘respondent’’ is defined as ‘‘an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.’’ The § 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 § 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 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, § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.8(c). Changes: None. Comments: Many commenters expressed concern that the § 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 Many commenters expressed concerns that the § 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 § 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 § 106.45 on the ground that it will be burdensome and costly for many recipients to adopt and implement. Some commenters believed that § 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 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). PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 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, § 106.45 prescribes a grievance process focused on reaching an accurate determination regarding responsibility so that recipients and the Department can 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 § 106.45(b)(1)(i) clarifies that ‘‘remedies’’ may consist of individualized services similar to those described in § 106.30 as ‘‘supportive measures’’ except that remedies need not avoid disciplining or burdening the respondent. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 Within the standardized § 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 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.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 § 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 truthseeking process reasonably adapted for implementation in an education program or activity. The Department understands commenters’ objections that § 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 nondiscrimination 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 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 30097 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 § 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 § 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 § 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 The Department disagrees with commenters who believe that § 106.45 458 Section 106.45(b)(9). 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 § 106.45. 459 Section E:\FR\FM\19MYR2.SGM 19MYR2 30098 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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.463 461 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); § 106.45(b)(6). We also note that § 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.45 without regard to any party’s sex, race, ethnicity, or other characteristic, and expects recipients to implement § 106.45 without bias of any kind. The Department further notes that the § 106.45 grievance process is one particular part of a recipient’s response to a formal complaint; § 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 § 106.45 grievance process. The Department believes that § 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 § 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 § 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 § 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 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. 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 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 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 days, school days, or other method); § 106.45(b)(6)(i) (allowing, but not requiring, live hearings to be held virtually through use of technology); § 106.45(b)(5)(vi) (removing the requirement that evidence in the investigation be provided to the parties using a file-sharing platform); § 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 nondiscrimination mandate. 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 § 106.45 and criminal laws. Where appropriate, the final regulations acknowledge this intersection; 466 465 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). 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 nonresponsibility of the respondent solely based on a party’s failure to appear or answer crossexamination 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 § 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 § 106.45 grievance process. § 106.45(b)(5)(vi) (specifying that the evidence directly related to the PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 30099 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 § 106.45 grievance process. 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 § 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 § 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 § 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 § 106.45 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); § 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. E:\FR\FM\19MYR2.SGM 19MYR2 30100 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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. 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 § 106.45 by noting that Federal courts have not required the particular procedures required under § 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 § 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 § 106.45 prohibiting bias, conflicts of interest, and sex stereotypes used in 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. 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 § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 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 § 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 § 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 § 106.45. Discussion: The § 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 § 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 § 106.45 grievance process is to provide 470 2001 E:\FR\FM\19MYR2.SGM Guidance at 22. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 sexbased biases and stereotypes into Title IX proceedings, and promote reliable outcomes. 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 § 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 § 106.45 are required under constitutional due process, § 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 § 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. While commenters correctly observe that the Supreme Court’s Title IX opinions do not equate failure to adopt a grievance procedure with sex 471 See discussion in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 sexbased bias that might otherwise cause recipients to favor one party over the other. The Department appreciates commenters’ recognition that many provisions of § 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 § 106.45 grievance process effectuates Title IX’s nondiscrimination 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 § 106.45 grievance process provides an appropriately fair framework for many types of school disciplinary matters, the Department is authorized to prescribe § 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 sexbased assumptions, generalizations, and 472 See, e.g., Gebser, 524 U.S. at 291–92. 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.’’). 473 Id. PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 30101 stereotypes (which violate Title IX’s non-discrimination mandate). The Department declines to apply the § 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 § 106.44(a) and § 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 § 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 § 106.45 only when a respondent faces expulsion; rather, § 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 § 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 § 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. Changes: The final regulations use the phrase ‘‘grievance process that complies with § 106.45’’ instead of ‘‘due process’’ or ‘‘due process protections.’’ Comments: A few commenters noted that existing Title IX regulations provide 474 E.g., E:\FR\FM\19MYR2.SGM § 106.8(c); § 106.44(a); § 106.45(b)(1)(i). 19MYR2 30102 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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’ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 investigations will be held to consistent standards of adequacy, reliability, and impartiality. Changes: None. Comments: One commenter characterized the requirements of § 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 § 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 § 106.45 by raising the objection before the decision-maker and on appeal? (iii) Will any violation of § 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 § 106.45 affected the outcome? Discussion: In response to the commenter’s questions, the Department will enforce § 106.45 by holding recipients responsible for compliance regardless of any intent on the part of the recipient to violate § 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 § 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 § 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 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 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. 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. 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, 475 Commenters cited: Rape, Abuse & Incest National Network (RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/ statistics/campus-sexual-violence. 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 106.45 particularly, unfairly favor respondents over complainants or sexual harassment perpetrators over victims, or that § 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 § 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, § 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 § 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, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 (§ 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 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 § 106.30 defining ‘‘supportive measures’’), and § 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. PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 30103 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 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 nondiscrimination 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 § 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 § 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, decisionmakers 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, 478 Section 106.44(a); § 106.30 (defining ‘‘supportive measures’’). 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 NonResponsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30104 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations conflicts of interest, and bias under § 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 § 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. The Department believes that § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 In response to many commenters concerned about retaliation, the final regulations include § 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 § 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 § 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 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 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 § 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 § 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. 480 Davis, E:\FR\FM\19MYR2.SGM 526 U.S. at 648–49. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 106.45-compliant grievance process. For example, while § 106.45 does not set parameters around the ‘‘quality’’ of evidence that can be relied on, § 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 § 106.45 grievance process including, for example, adjudication in a State administrative law setting. The Department has tailored the § 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, § 106.45 provides a standardized framework. The Department notes that nothing in the final regulations precludes a recipient from carrying out its responsibilities under § 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 decisionmakers 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.45. The very purpose of the § 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 § 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 § 106.30 warrants the § 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 § 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 § 106.45 contains provisions that some PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 30105 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 Actual Knowledge Support for Actual Knowledge Requirement and General Safety Concerns Comments: Several commenters who supported the definition of actual knowledge in § 106.30 and the actual knowledge requirement in § 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 481 The NPRM proposed that the definitions in § 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 § 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 § 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 § 106.30 will apply only to §§ 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 § 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 § 106.81 that the definitions in § 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. E:\FR\FM\19MYR2.SGM 19MYR2 30106 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 106.30 and actual knowledge requirement in § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.30 definition of ‘‘actual knowledge’’ and the requirement in § 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 § 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 § 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 § 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 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 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.482 482 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. § 106.8; § 106.30 (defining E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 ‘‘actual knowledge’’ to include, but not be limited to, a report to the Title IX Coordinator). 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 § 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 § 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, nonsexual 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.44(a). 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 § 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 nonbusiness hours) by using the listed 484 See Ala. Code § 26–14–3; Alaska Stat. § 47.17.020; Ariz. Rev. Stat. § 13–3620; Ark. Code Ann. § 12–18–402; Cal. Penal Code § 11165.7; Colo. Rev. Stat. § 19–3–304; Conn. Gen. Stat. § 17a-101; Del. Code Ann. tit. 16, § 903; DC Code § 4–1321.02; Fla. Stat. § 39.201; Ga. Code Ann. § 19–7–5; Haw. Rev. Stat. § 350–1.1; Idaho Code Ann. § 16–1605; 325 Ill. Comp. Stat. § 5/4; Ind. Code § 31–33–5–1; Iowa Code § 232.69; Kan. Stat. Ann. § 38–2223; Ky. Rev. Stat. Ann. § 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 22, § 4011–A; Md. Code Ann., Fam. Law § 5–704; Mass. Gen. Laws ch. 119, § 21; Mich. Comp. Laws § 722.623; Minn. Stat. § 626.556; Miss. Code. Ann. § 43–21–353; Mo. Ann Stat. § 210.115; Mont. Code Ann. § 41–3–201; Neb. Rev. Stat. § 28–711; Nev. Rev. Stat. § 432B.220; N.H. Rev. Stat. Ann. § 169–C:29; N.J. Stat. Ann. § 9:6– 8.10; N.M. Stat. Ann. § 32A–4–3; N.Y. Soc. Serv. Law § 413; N.C. Gen. Stat. Ann. § 7B–301; N.D. Cent. Code Ann. § 50–25.1–03; Ohio Rev. Code Ann. § 2151.421; Okla. Stat. tit. 10A, § 1–2–101; Or. Rev. Stat. § 419B.010; 23 Pa. Cons. Stat. Ann § 6311; R.I. Gen. Laws § 40–11–3(a); S.C. Code Ann. § 63– 7–310; S.D. Codified Laws § 26–8A–3; Tenn. Code Ann. § 37–1–403; Tex. Fam. Code § 261.101; Utah Code Ann. § 62A–4a–403; Vt. Stat. Ann. tit. 33, § 4913; Va. Code Ann. § 63.2–1509; Wash. Rev. Code § 26.44.030; W. Va. Code § 49–2–803; Wis. Stat. § 48.981; Wyo. Stat. Ann. § 14–3–205. PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 30107 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 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30108 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient to offer supportive measures to a complainant with or without a formal complaint ever being filed. 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 § 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 § 106.44(a) and constitutes a violation of these final regulations. Changes: The Department expands the definition of actual knowledge in § 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 § 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. 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 nonbinary 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 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 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 § 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 § 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.487 487 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 § 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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, § 106.30 defining ‘‘actual knowledge’’ is also revised to expressly state that ‘‘notice’’ includes a report to the Title IX Coordinator as described in § 106.8(a).489 These final regulations 488 The Department has revised the § 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.44(a). 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 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. PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 30109 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 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 § 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 490 Section E:\FR\FM\19MYR2.SGM 106.45(b)(2); § 106.45(b)(5)(iv). 19MYR2 30110 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 firsthand observation of conduct that could constitute sexual harassment). Changes: The Department has revised the § 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 § 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 twothirds 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. 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 § 106.45). 492 Commenters cited: Massachusetts Institute of Technology, Survey Results: 2014 Community Attitudes on Sexual Assault (2014). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. Another commenter characterized the proposed rules’ definition of actual knowledge in § 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 § 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. 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 § 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 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 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). 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). PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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. § 106.44(a); § 106.44(b)(1); § 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. § 106.30 (defining ‘‘formal complaint’’); § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 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 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. § 106.44(a); § 106.6(g). PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 30111 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 § 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. 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. 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 499 Section 500 Section E:\FR\FM\19MYR2.SGM 106.8. 106.30 (defining ‘‘actual knowledge’’). 19MYR2 30112 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 § 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 § 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. 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 § 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). § 106.8(b) (requiring recipients to prominently display the Title IX Coordinator’s contact information on recipients’ websites). 502 We have also revised § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 106.30 (as revised) and the actual knowledge requirement in § 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 § 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 503 E.g., PO 00000 2001 Guidance at 13. Frm 00088 Fmt 4701 Sfmt 4700 person alleged to be the victim of sexual harassment) or by any other person. Revised § 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. 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 § 106.8(a) to reflect this reality by using the phrase ‘‘Designation of Title IX Coordinator’’ in the header for § 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 § 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 504 2001 E:\FR\FM\19MYR2.SGM Guidance at 13. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 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. § 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 § 106.30. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 knowledge in § 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.’’ 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 § 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 § 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 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 30113 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 Changes: The Department revised the definition of actual knowledge in § 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 § 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 § 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 30114 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 parttime 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 507 2001 Guidance at 13. 508 2001 Guidance at 13. 509 Id. 510 Section 106.45(b)(1)(iii). 511 E.g., § 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). PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 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 § 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 § 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 § 106.8 to require a recipient to notify its educational community of the contact information for the Title IX Coordinator 514 and post 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 § 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, to contact to report sex discrimination, including sexual harassment. 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 § 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 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. PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 30115 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. 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 § 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 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30116 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. Changes: The Department revised § 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. 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 PeerHarassment 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Elementary and Secondary Schools Comments: Many commenters expressed concerns about how the § 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 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 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 § 106.30 to include ‘‘any employee of an elementary and secondary school’’ and adds § 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 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 518 Section 106.8(a) (emphasizing that ‘‘any person’’ may report sexual harassment to the Title IX Coordinator). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 § 106.30, and any State law, in the context of elementary and secondary schools. Changes: The Department revised § 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 519 2001 Guidance at 13. 520 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 nondiscrimination mandate extends to every recipient’s education programs or activities.522 These final regulations at § 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,523 521 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 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 30117 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 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. § 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. Twothirds 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). E:\FR\FM\19MYR2.SGM 19MYR2 30118 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 nondiscrimination 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 526 E.g., § 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); § 106.8(b)(2) (requiring a recipient to post contact information for any Title IX Coordinators on the recipient’s website); § 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 § 106.8(a)); § 106.30 (defining ‘‘formal complaint’’ and stating a Title IX Coordinator may sign a formal complaint initiating a § 106.45 grievance process); § 106.44(a) (stating the Title IX Coordinator must contact each complainant to discuss the availability of supportive measures); § 106.30 (defining ‘‘supportive measures’’ and mandating that Title IX Coordinators are responsible for effective implementation of supportive measures); § 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); § 106.45(b)(3)(ii) (stating a complainant may notify the Title IX Coordinator that the complainant wishes to withdraw a formal complaint); § 106.45(b)(7)(iv) (mandating that Title IX Coordinators are responsible for the effective implementation of remedies). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 assume the conditions under which a recipient needs more than one Title IX Coordinator in order to meet the recipient’s Title IX obligations. 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 § 106.8(a) obviates some commenters’ concerns that complainants will need to travel to physically report in person or face-toface with a Title IX Coordinator.532 Thus, even if the recipient’s Title IX 527 E.g., § 106.8(a); § 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. PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 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. 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 § 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 533 For additional accessibility and ease of reporting, revised § 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. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 106.30 534 concerning reporting obligations and training, or to insert the word ‘‘apparent’’ before the word ‘‘authority’’ in the first sentence of § 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 534 The last sentence of § 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 § 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.). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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). As explained above, the final sentence in § 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 § 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 536 Davis, 526 U.S. at 646–48, Gebser, 524 U.S. at 289–91. 537 See id. PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 30119 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 § 106.8, the burden is on the recipient to designate a Title IX Coordinator, and the definition of ‘‘actual knowledge’’ in revised § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30120 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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. Although the Department recognizes that recipients may desire guidance on training (particularly now that the final regulations in § 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 § 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 § 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. 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 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). 539 Section 106.45(b)(1)(iii) (requiring training of Title IX Coordinators, investigators, decisionmakers, and any person who facilitates informal resolution processes). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 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 § 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 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.’’). PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 whom notice constitutes actual knowledge. Commenters argued that in order to further Title IX’s nondiscrimination 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. 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 § 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 § 106.44(b)(2) 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. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. The proposed definition of complainant did not prevent third-party reporting, and while the final regulations revise the § 106.30 definition of complainant, the final regulations also do not prevent thirdparty 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. We agree that third party reporting of sexual harassment promotes Title IX’s non-discrimination mandate. In response to commenters’ concerns, we have revised § 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 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. 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). PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 30121 email address (or by mail to the office address) listed for the Title IX Coordinator. We have also revised § 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 § 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 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 § 106.8(a). We have revised § 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. E:\FR\FM\19MYR2.SGM 19MYR2 30122 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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). We agree with commenters that allowing third-party reporting is necessary to further Title IX’s nondiscrimination 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 § 106.30 allowed or prohibited thirdparty 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 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. § 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 § 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 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 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. 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 § 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 § 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 We decline commenters’ suggestions to define a complainant as a person reported to be the victim of ‘‘sexdiscriminatory 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 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 nonparticipating 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 § 106.45(b). 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. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the term ‘‘sexual harassment’’ in § 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 § 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 § 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. Changes: The final regulations revise the definition of ‘‘complainant’ in § 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 549 For reasons discussed in the ‘‘Proposed § 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 § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 One commenter recommended that language be added requiring the complainant to prove absence of 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/featuredcontent/sex-and-the-price-of-masculinity-gmp/. PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 30123 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 E:\FR\FM\19MYR2.SGM 19MYR2 30124 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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, nonarbitrary 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 552 Commenter cited: Jacob E. Gerson & Jeannie Suk Gersen, The Sex Bureaucracy, 104 Cal. L. Rev. 881 (2016). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 centuriesold understandings of due process. 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 recommunicated 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 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-miamilaw-prof-affirmative-consent-effectively-shiftsburden-of-proof-to-accused/. PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 106.45(b)(1)(iii), and could potentially be ‘‘treatment of a complainant’’ or ‘‘treatment of a respondent’’ that § 106.45(a) recognizes may constitute sex discrimination in violation of Title IX. We have revised the introductory sentence of § 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 § 106.45 grievance VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. The final regulations require Title IX Coordinators, investigators, decisionmakers, 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 § 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 § 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 § 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 § 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 554 Section 106.45(b)(5)(i) (stating burden of proof must rest on the recipient and not on the parties). PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 30125 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30126 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 §§ 106.44 and 106.45 of these final regulations. Changes: The Department includes a definition of elementary and secondary schools as used in §§ 106.44 and 106.45 to mean a LEA as defined in the ESEA, a preschool, or a private elementary or secondary school. 555 83 FR 61498. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Formal Complaint Support for Formal Complaint Definition Comments: Some commenters supported the definition of a ‘‘formal complaint’’ in § 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 § 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 556 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Victimization: 2016 Revised 5 (2018). PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 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. 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 § 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 557 E.g., § 106.44(b)(1); § 106.45(b)(3)(i). discussed throughout this section of the preamble, we have revised the § 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 § 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 § 106.6(g) to acknowledge the legal rights of parents 558 As E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 § 106.45,560 and that the prescribed grievance process gives strong due process protections to both parties. 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 § 106.30 is serious misconduct or guardians to act on behalf of a complainant, respondent, or other party, including with respect to the filing of a formal complaint. 560 Revised §§ 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 § 106.30, against a respondent without first following the § 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 § 106.44(c), and a non-student employee respondent may be placed on administrative leave during the pendency of an investigation, under § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that warrants a serious response. All the conduct defined as ‘‘sexual harassment’’ in § 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. 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 § 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 § 106.30 definition of formal complaint to state that at the time of filing a formal complaint, the 561 Section 106.44(a) (requiring a prompt, nondeliberately 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). 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 § 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 factspecific circumstances result in the recipient’s inability to gather evidence sufficient to reach a determination regarding responsibility. PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 30127 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. Changes: As discussed in more detail throughout this section of the preamble, we have revised the § 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 § 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 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30128 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 563 The final regulations revise § 106.44(a) to require a recipient to respond ‘‘promptly.’’ 564 Revised § 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 § 106.44(a)). PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 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. 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 § 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. 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 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 § 106.44(a), which includes offering supportive measures to the complainant. 567 Section 106.30 (defining ‘‘actual knowledge’’). Where a person reports anonymously (regardless of E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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, § 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 § 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 § 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations will not chill reporting of sexual harassment, but instead will provide complainants with clearer options and greater control over the process.569 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 § 106.30, the final regulations require recipients to respond promptly and nondeliberately 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, § 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 § 106.45. The ‘‘prompt 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. § 106.71 (prohibiting retaliation). PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 30129 and equitable’’ grievance procedures to which commenters referred still must be adopted, published, and used by a recipient to address complaints of nonsexual harassment sex discrimination, under § 106.8(c), while recipients must respond to formal complaints of sexual harassment by following a grievance process that complies with § 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. 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. E:\FR\FM\19MYR2.SGM 19MYR2 30130 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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, nondiscriminatory 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 § 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 § 106.44(b)(2) only ensured that students in higher education would VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 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. PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 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 § 106.44(a). The § 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 572 Section 106.8(a). have revised § 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.’’ 573 We E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 574 See § 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 § 106.8(a). 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. § 106.30 (defining ‘‘actual knowledge’’). 576 Section 106.44(a) § 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. § 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 106.45(b)(10), thereby emphasizing the need for a decision to initiate a PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 30131 grievance process over the wishes of a complainant to be intentionally, carefully made taking into account the circumstances of each situation. The § 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.584 579 Cf. § 106.6(g). Michelle L. Meloy & Susan L. Miller, The Victimization of Women: Law, Policies, and Politics 147–48 (Oxford University Press 2010) (antiviolence 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 § 106.30 ensures that schools must investigate when the complainant desires that action (see also § 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. § 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 § 106.8(a)). 583 Section 106.30 (defining ‘‘actual knowledge’’). 584 Sections 106.44(a), 106.44(b)(1). 580 See E:\FR\FM\19MYR2.SGM 19MYR2 30132 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 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 § 106.44(b)(2) applied only to postsecondary institutions, we have removed the safe harbor in proposed § 106.44(b)(2), and revised § 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 585 Section 586 Section 106.8. 106.44(a). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 children are expected to write or sign a formal complaint. Changes: We have removed the supportive measures safe harbor in proposed § 106.44(b)(2) and have revised § 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 § 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 § 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. 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). PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 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 nondeliberately 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 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-reportingsexual-violence. 590 Section 106.30 (defining ‘‘actual knowledge’’). 591 Section 106.44(a). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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). 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 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.’’). PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 30133 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 § 106.71 to impose that expectation on recipients.593 When a formal complaint is signed by a Title IX Coordinator rather than filed by a complainant, the written notice of allegations in § 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.594 593 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). 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 § 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 § 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30134 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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. discretionary dismissal of the formal complaint, or allegations therein. § 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 § 106.44(a). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 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 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 § 106.30. We have also revised the § 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 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, § 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 nocontact 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. Changes: We have revised the § 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 § 106.45(b)(1)(iii) to be free from bias or conflict of interest. We have also revised the definition of ‘‘complainant’’ in § 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 § 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 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 30135 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 ‘‘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 § 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.’’ The § 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 § 106.44(a) to respond promptly in a way that is not clearly unreasonable in light of the known circumstances and this obligation 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. 599 Proposed § 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 § 106.45.’’ E:\FR\FM\19MYR2.SGM 19MYR2 30136 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. 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 § 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 § 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 § 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 § 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 600 Section 106.45(b)(10)(ii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 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). PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 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 Changes: We have added § 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 § 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 § 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 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 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). 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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 § 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 § 106.8(b) to specify that the contact information required to be listed for the Title IX Coordinator under § 106.8(a) must be prominently VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 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 § 106.30 defining ‘‘formal complaint’’ give complainants the options of filing 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 § 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 § 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 § 106.8(a). We have further revised § 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. PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 30137 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 § 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 § 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 § 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. E:\FR\FM\19MYR2.SGM 19MYR2 30138 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 606 Section 106.44(a); § 106.30 (defining ‘‘supportive measures’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 supportive measures that help a complainant maintain educational access. The § 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, § 106.44(a) prohibits a recipient from imposing disciplinary sanctions on a respondent without first following a grievance process that complies with § 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 § 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 §§ 106.44(a) and 106.44(b)(1). 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 § 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 § 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 § 106.45(b)(2) and fulfill all other requirements of the § 106.45 grievance process. Changes: We have revised § 106.30 defining ‘‘formal complaint’’ to provide that at the time of filing a formal 607 See PO 00000 also § 106.45(b)(1)(i). Frm 00114 Fmt 4701 Sfmt 4700 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 § 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 § 106.2. Paragraphs (l), (m), (n), and (o) of § 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 § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), and an institution of vocational education as defined in E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.2(o). In this manner, the Department defines the subset of educational institutions as defined in § 106.2(k) that constitute postsecondary institutions as defined in § 106.30. The remainder of the entities described as educational institutions in § 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 §§ 106.44 and 106.45 of these final regulations. Changes: The Department revises § 106.30 to define a ‘‘postsecondary institution’’ as used in §§ 106.44 and 106.45 to mean an institution of higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), and an institution of vocational education as defined in § 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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 § 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 § 106.30 Sexual Harassment Definition Comments: Many commenters expressed support for the § 106.30 definition of sexual harassment. One commenter commended the Department’s § 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 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 30139 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 § 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30140 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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. Several commenters supported the § 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 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). 610 Commenters cited: Snyder v. Phelps, 562 U.S. 443 (2011). 611 Commenters cited: NAACP v. Button, 371 U.S. 415, 438 (1963). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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. 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 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). PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 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 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-speechshrinks-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). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations requirement that verbal conduct deny access to an education. The commenter argued that the § 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. One commenter asserted that the Davis standard, incorporated into the second prong of the § 106.30 definition, allows schools to prohibit sexual violence, to discipline those who 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). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 § 106.30 definition based on belief that the Federal government should not 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). PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 30141 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 § 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 § 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 § 106.30 adopts the Supreme Court’s formulation of actionable sexual harassment, yet adapts the formulation E:\FR\FM\19MYR2.SGM 19MYR2 30142 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations for administrative enforcement in furtherance of Title IX’s broad nondiscrimination 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 § 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. 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 624 These final regulations expressly include four Clery Act/VAWA offenses as sexual harassment as defined in § 106.30: Sexual assault, dating violence, domestic violence, and stalking. 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 Changes: We have revised the § 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 F.3d 200, 207 (3d Cir. 2001) (‘‘government may constitutionally prohibit speech whose nonexpressive 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). 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 § 106.30 (defining ‘‘complainant’’ to mean ‘‘an individual who is alleged to be the victim . . .’’) (emphasis added). PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 VAWA statutes rather than the Clery Act regulations. Comments: Many commenters opposed the § 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 627 Commenters cited: Alexander v. Yale Univ., 459 F. Supp. 1 (D. Conn. 1977). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations or severe enough to warrant someone listening to me? 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 § 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 § 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 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 § 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, 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 sexbased 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. PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 30143 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, learningconducive 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. 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 § 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 E:\FR\FM\19MYR2.SGM 19MYR2 30144 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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. 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 630 Stapleton v. Holt, 250 P.2d 451, 453–54 (Okla. 1952). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 § 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 § 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 § 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 § 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. Some commenters expressed concern that the § 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) 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). 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). 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 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘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 § 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). 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) 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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 cyberharassment must be responded to is whether such harassment meets the description of harassment set forth in the Department’s 2001 Guidance. 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 § 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 § 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 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/yikyak-university-of-mary-washington/index.html. PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 30145 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 § 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 § 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 § 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 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). E:\FR\FM\19MYR2.SGM 19MYR2 30146 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 § 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 § 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 § 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 § 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. 637 Commenters referred to ‘‘sexual coercion’’ as quid pro quo harassment. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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. 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 § 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 inperson, 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 § 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 § 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 PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 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 § 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. 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 638 See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). 639 20 U.S.C. 1681(a). 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 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 § 106.30 definition and other provisions of the final regulations. Changes: We have revised § 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 § 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 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. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 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- PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 30147 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 § 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 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 § 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 E:\FR\FM\19MYR2.SGM Continued 19MYR2 30148 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 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 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 nonemployee students, volunteers, or others 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’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 not deemed to be a recipient’s employee. The Department understands commenters’ concerns that nonemployees 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 § 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 § 106.30 definition. 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 § 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 § 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 § 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 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,’ § 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.’’). 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). PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 complainant’s subjective statement that the complainant found the conduct to be unwelcome suffices to meet the ‘‘unwelcome’’ element. Changes: None. Prong (2) Davis Standard Davis Standard Generally Comments: Several commenters supported the second prong of the § 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 overenforcement 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.’’ On the contrary, many commenters opposed the second prong of the § 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 ‘